By decision rendered of even date herewith, the Department directed the cancellation of said Graham's pre-emption cash entry, made January 8, 1894, for the SW. of the SE. of Sec. 8, and the N. of the NE. 4 and the SE. of the NE. 1 of Sec. 17, in said township and rangethe same never having been earned by him by compliance with the requirements of the pre-emption law.

The land last above described embraces one hundred and sixty acres of the three hundred and twenty acres described in William Graham's said deed to Isaac Graham. The former, therefore, at the time he executed said deed purporting to convey three hundred and twenty acres, was in fact the lawful owner of only one hundred and sixty acres. It therefore becomes unnecessary in this opinion to pass upon the question whether said deed was a bona fide conveyance or not. In either event, he was not disqualified to enter a quarter section of land under the homestead law.

The decision of your office holding that he was disqualified for the reason above stated is therefore reversed, and said entry will remain intact, subject to compliance with law.

MINING CLAIM- FIRE CLAY-RAILROAD GRANT,

ALLDRITT. NORTHERN PACIFIC R. R. Co.

Land chiefly valuable for its deposits of fire clay is subject to location and entry under the mining laws of the United States, and is included in the exception of "mineral lands" from the grant to the Northern Pacific Railroad Company. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) November 6, 1897. (W. A. E.)

The land here involved, viz., the N. of the NW. 4 of Sec. 27, T. 3 S., R. 7 E., Bozeman, Montana, land district, is within the primary limits of the grant of July 2, 1864 (13 Stats., 365), to aid in the construction of the Northern Pacific Railroad and was listed by the company on July 8, 1891.

It appears that the commissioners appointed under the act of February 26, 1895 (28 Stats., 683) to examine and classify mineral lands in the states of Montana and Idaho, returned this tract as non-mineral in character.

On October 5, 1895, Isaac Alldritt filed a protest against the classifi cation and listing, alleging that he had discovered on the land a valuable deposit of fire clay and had located a portion of the tract as a mining claim for this deposit on July 11, 1895.

A hearing was ordered on this protest and set for January 20, 1896, but at the request of the railroad company it was postponed to February 28, 1896. On the latter named day the protestant appeared and submitted testimony, but the company made default. As a result of

the hearing the local officers found the land to be more valuable for mineral than for other purposes and recommended that the listing be canceled to the extent of the conflict.

Subsequently the railroad company filed an application to reopen the case, and the local officers being in doubt as to whether they had jurisdiction to grant the same, forwarded the motion to your office for instructions. Your office called for the entire record, which was for warded, and considered the matter of the protest on its merits without passing upon the question as to whether the case should be reopened. It was held by your office, under date of October 2, 1896, that fire clay did not fall within the meaning of mineral lands so as to exclude land containing this deposit from the operation of the grant to said company.

From this decision the protestant has appealed.

At the request of your office this case has been advanced and made special for the reason that it involves an important question which should be settled.

The question is whether fire clay is a mineral within contemplation of the exceptions to the grant to the Northern Pacific Railroad Company, excluding therefrom "mineral lands."

In the recent case of Pacific Coast Marble Co. v. Northern Pacific R. R. Co. et al. (25 L. D., 233), it was held that whatever is recognized as a mineral by the standard authorities, whether of metallic or other substances, when found in the public lands, in quantity and quality sufficient to render the land more valuable on account thereof than for agricultural purposes, must be treated as coming within the purview of the mining laws; and further, that lands containing valuable mineral deposits, whether of the metalliferous or fossiliferous class, of such quantity and quality as to render them subject to entry under the mining laws, are "mineral lands" within the meaning of that term as used in the exception from the grant to the Northern Pacific Company for railroad purposes, and to the State for school purposes.

The deposit in that case was marble instead of fire clay as in the case at bar, but the reasoning applies fully to the present case. On the authority of said decision, therefore, it is held that land valuable for its deposits of fire clay is subject to location and entry under the mining laws of the United States, and is included in the exception of "mineral lands" from the grant to the Northern Pacific Railroad Company.

This raises the question, then, as to whether the tract here involved is more valuable for mineral than for other purposes.

As stated above, the hearing was ex parte, the railroad company making default.

In its motion to reopen the case the company alleges that an agree ment was entered into between J. H. Scales, a special agent of the General Land Office, representing the government, and Tom Cooney,

the attorney for the Northern Pacific Railroad Company, to postpone the hearing to April 16, 1896; that the said special agent wished to examine the tract and this could not be done until the snow was off the ground; and that owing to a multiplicity of duties the said special agent overlooked the important matter of notifying the local officers of the agreement for postponement.

It does not appear that Alldritt, or his attorney, was consulted or notified in any way of this agreement to postpone the hearing. The register and receiver had appointed a time for the hearing and notified the parties. Alldritt appeared at that time and submitted testimony. It would be unjust to him to put him to the expense of another hearing on account of an agreement for postponement that neither he nor his attorney knew anything about. The hearing was regular in every respect, was had at the time appointed by the local officers, and as the company does not make a sufficient showing to warrant the reopening of the case, the motion is denied.

It appears from the testimony that the land involved is rocky and wholly unfit for agricultural purposes; that there are not more than two acres of grass growing land thereon; that it is underlaid with fire clay of a superior quality, which crops out in various places; and that the land is more valuable for mineral than for other purposes.

Your office decision is accordingly reversed and the company's list will be canceled as to the land here involved.

MINING CLAIM-OIL LANDS-RAILROAD GRANT.

UNION OIL COMPANY (ON REVIEW).

Lands chiefly valuable on account of the petroleum deposits contained therein are of the character subject to entry under the mining laws, and are not subject to selection as indemnity under a railroad grant wherein "mineral lands" are excepted from the operation of the grant.

Under the mining laws of the United States but one discovery of mineral is required to support a placer location, whether it be of twenty acres, by an individual, or of one hundred and sixty acres, or less, by an association of persons.

The case of Ferrell v. Hoge et al., 18 L. D., 81, overruled.

The Southern Pacific R. R. Co. is not entitled to make indemnity selections within the forfeited primary limits of the Atlantic and Pacific grant.

Acting Secretary Ryan to the Commissioner of the General Lan 1 Office, (W. V. D.)

November 6, 1897.

(A. B. P.)

This is a motion for review of departmental decision of August 27, 1896, in the case of the Union Oil Company (23 L. D., 222). The motion has been duly entertained, and properly matured for consideration.

On January 16, 1894, the Union Oil Company made mineral entry No. 140, covering 78.82 acres of land, situated partly in section 1, T. 4 N., R. 20 W., and partly in section 6, T. 4 N., R. 19 W., Los Angeles,

California, and known as the Central Oil Mine. That portion situated in section 1, was, on October 3, 1887, selected by the Southern Pacific Railroad Company, as indemnity, under its grant of March 3, 1871 (16 Stat., 573-9), per list No. 25.

By direction of your office, under date of May 19, 1894, the railroad company was allowed sixty days, upon notice, to show cause why its selection should not be canceled, and the mineral claimant was

required to show a discovery of a valuable deposit of mineral for each twenty acre tract, or fractional part thereof, contained in said Central Oil placer, the evidence of such discovery to consist of the affidavits of two or more persons.

From this action the mineral claimant appealed. The railroad company, in answer to the rule upon it, filed a paper in the nature of a protest against the cancellation of its selection, alleging that lands containing petroleum are not "mineral lands," within the meaning of that term as used in its grant.

In the decision complained of it was held, in substance and effect: 1. That lands containing petroleum are not subject to location and entry under the mining laws;

2. That such lands do not fall within the meaning of the exception. of "all mineral lands" from the grant to the railroad company; and

3. That even if such lands were subject to location and entry under the mining laws, the discovery of mineral on each twenty acres of the claim, is a legal prerequisite to a valid location.

The errors assigned in the motion for review need not be given in detail. It is suflicient to say that, in effect, they deny the correctness of the several holdings of said decision. The further claim was made in the argument of counsel, that the entry here involved, in the event the principles of said decision are adhered to, should be held as confirmed by the act of Congress of February 11, 1897 (29 Stat., 526); and that independently of the mineral question, the railroad company possesses no right of selection under its grant, as to the lands in section 1. A number of cases, involving substantially the same questions raised by the motion, were decided by the Department about the same time or shortly after the decision in this case was rendered, and in each case the ruling was based upon that decision. Motions for review have been filed in all the cases, and it is represented that large and valuable interests are dependent upon the conclusion to be finally reached. The questions presented are purely questions of law. There appears to be no dispute as to the facts. In view of the allowance by the local office of the mineral entry, and in the absence of any showing to the contrary, it will be assumed that the lands are chiefly valuable for the deposits of petroleum they contain, and that in this respect the entry was regular, if such lands are subject to mineral entry at all.

Upon this question the theory of the decision complained of appears to be that only lands containing metallic minerals, such as gold, silver, cinnabar, lead, tin, copper, and deposits of like nature, were within the contemplation of Congress in the enactment of the mining statutes,

and in making the exception of "all mineral lands" from the grant to the railroad company; that though scientifically speaking, petroleum is a mineral, yet it is not such a mineral as will render lands containing it, and chiefly valuable on account thereof, subject to entry under the mining laws, or exclude them from the grant to the railroad company. It is insisted by the mineral claimant, both as a matter of original construction, and in view of the uniform practice of the Land Department for over twenty years in permitting oil lands to be entered and patented under the placer mining laws, that said decision is wrong and should be revoked.

The provisions of the mining statutes, as at present codified from the act of May 10, 1872 (17 Stat., 91-2), and other acts on the subject, are to be found in the Revised Statutes, sections 2318 to 2352, inclusive. Section 2318 provides that:

In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.

Section 2319 provides that:

All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found, to occupation and purchase under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable. and not inconsistent with the laws of the United States.

Sections 2320 to 2328, inclusive, prescribe rules and regulations to govern the location of "mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits," and provide the manner of obtaining title from the government for such mining claims.

By section 2329 it is provided that:

Claims usually called "placers", including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims.

It is under this last section that the application for patent by the mineral claimant is preferred.

The first departmental circular on the subject of the mining laws, was issued by Commissioner Drummond of the General Land Office, on July 15, 1873 (Copp's Mineral Lands, 61). In defining what constitutes "a valuable mineral deposit" within the meaning of those laws, the Commissioner said:

That whatever is recognized as a mineral by the standard authorities on the subject, where the same is found in quantity and quality to render the land sought to be patented more valuable on this account than for purposes of agriculture, should be treated by this office as coming within the purview of the mining act of May 10, 1872. It was further stated:

The language of the statute is so comprehensive, and capable of such liberal construction, that I cannot avoid the conclusion that Congress intended it as a general mining law, "to promote the development of the mining resources of the United 2670-VOL 25-23