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appropriation of the land, he complied with the regulations of the mining district, that license was protected as a property right.1

By the act of July 26, 1866, Congress passed a law by which the title to mineral land might be acquired from the government at nominal prices. This and the act of May 10, 1872, so far as unrepealed, had been consolidated in Rev. Stats., Title XXXII., chap. 6, and, with the acts supplementary thereto, now govern exclusively the granting of mineral lands by the United States.2

These acts continued the system of free mining, held the mineral lands open to exploration and occupation, subject to legislation by Congress and to local rules, and recognized the obligation of the government to respect private rights which had grown up under its tacit consent and approval. They proposed no new system, but sanctioned, regulated, and confirmed a system already established, to which the people were attached. It is particularly provided that existing rights shall not be impaired.

Title to mineral lands can be obtained only under these acts. "In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." Rev. Stats. 2318. How that title may be obtained is the subject of the following chapters.

By Rev. Stats. 2345 mineral lands in Michigan, Wisconsin, and Minnesota are excepted from the provision of the Mineral Land Laws; by the act of May 5, 1876 (19 Stat. 52), 1 Sup. to Rev. Stats. 104, a similar exception is made as to Kansas and Missouri; and by act of March 3, 1883 (22 Stat. 487), 1 Sup. to Rev. Stats. 404, as to Alabama. In these six States mineral lands are acquired from the United States in the same way as agricultural land.

I. WHAT LAND IS OPEN TO LOCATION AS MINERAL LAND. By Rev. Stats., sec. 2319, " All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurIntire, id. 593; Levaroni v. Miller, 34 id. 231.

1 Hicks v. Bell, 3 Cal. 219; Stoakes v. Barrett, 5 id. 36; McClintock v. Bryden, id. 97; Fitzgerald v. Urton, id. 308; Tartar v. Spring Creek W. & M. Co., id. 395; Burdge v. Underwood, 6 id. 45; Conger v. Weaver, id. 548; Boggs v. Merced M. Co., 14 id. 279; Henshaw Clark and 103 Chinamen, 14 id. 460; Clark v. Duval, 15 id. 85; Smith v. Doe, id. 101; Gillan v. Hutchinson, 16 id. 153; Rogers v. Soggs, 22 id. 444; Rupley v. Welch, 23 id. 453; Ensminger v. Mc

2 Gelcich v. Moriarty, 53 Cal. 217.

3 Special provision is made by this act as to coal and iron lands, as to which see Chap. XVII.

4 By act of Cong., March 3, 1891, sec. 16 (26 Stat. 1026), 1 Sup. to Rev. Stats. 929, all lands in Oklahoma are declared to be agricultural.

veyed, are declared to be free and open to exploration and purchase, and the land in which they are found, to occupation and purchase."

To render land, therefore, open to location as mining ground, three things are essential:

1st. It must be land containing valuable mineral deposits.

Mineral deposits are whatever are recognized as such by the standard authorities on the subject. They are valuable mineral deposits when they are of such value that they can be mined profitably. It must be borne in mind, however, that in making the statement we are discussing the question what lands are subject to location as mineral land. This test of the value of deposits is only applied when a contest arises between one claiming under a mineral location and another claiming under an entry of another kind. As will be seen when the subject of discovery is reached, a discovery of a trace of mineral is sufficient to establish the priority of a location, though the commercial value of the deposit be unproven.

2d. It must belong to the United States. It must be a part of the public domain at the time of the location.

3d. It must be unoccupied and unappropriated by others under claim of right.

Land answering these three essential descriptions is open to location; land lacking in any one of them is not.

In addition to the cases collected below, see also those under titles "Forfeiture," "Abandonment," "Relocation," "Conflicting Grants."2

United States.

Faxon v. Barnard, 2 McCrary, 44, 4 Fed. 702 (1880), C. C. D. Colo. One in actual possession of mining ground who has discovered and uncovered the lode, but has failed to take the other steps required by law to complete his location, cannot be ousted by a subsequent discoverer from the ground actually held by him. A location cannot be extended over a senior discovery in the actual possession of another.

Belk v. Meagher, 104, 284 (1880).

A location of a mining claim

may not be made upon land already actually covered at the time by (See this case under Chaps.

another valid and subsisting location. IX. and XII.)

Deffeback v. Hawke, 115, 392 (1885).

XVI., Div. I.

See this case under Chap.

1 For discussion of this matter the reader is referred to the Geological Preface. 2 Chaps. XI., XII., and XVI.

Davis v. Weibbold, 139, 507 (1891). Field, J.: "By the act of May 10, 1872, to promote the mining resources of the United States the first section of the act of 1866, declaring the mineral lands of the United States free and open to exploration and occupation, was repealed, and in the place of it a provision was adopted declaring that all valuable mineral deposits' in lands belonging to the United States, both surveyed and unsurveyed, were free and open to exploration and purchase, subject to conditions similar to those in the original act. The Revised Statutes, which embody the law of the United States in force on the first of December, 1873, in its treatment of mineral lands, provided that in all cases lands valuable for minerals should be reserved from sale, except as otherwise expressly directed by law (§ 2318), but at the same time repeated the declaration that all valuable mineral deposits in lands belonging to the United States should be free and open to exploration and purchase (§ 2319). After that date title to mineral lands, known at the time to be valuable, could only be acquired under provisions specially authorizing their sale, except in certain States."

Francoeur v. Newhouse, 43 Fed. 236 (1890), C. C. D. Cal. Land is mineral land if the fact is so obvious that any one seeing it would know it to be so, even though it was not known to be mineral land, because no one had ever inspected it.

Gird v. California Oil Co., 60 Fed. 531 (1894), C. C. L. D. Cal. "The premises in controversy are oil-bearing lands, the government title to which, under existing laws, can alone be acquired pursuant to the provisions of the mining laws relating to placer claims." Ross, D. J.1

Boggs v. Merced Min. Co., 14, 355 (1859). The United California. States could neither enter upon nor authorize an entry upon private property for the purpose of extracting mineral. Like any other proprietor they could only exercise the right to minerals in private property in subordination to such rules and regulations as the local sovereign might prescribe. Until such regulations are established, the proprietor of the land may successfully resist, in the courts of this State, all attempts at invasion of his property, whether by the direct action of the United States or by virtue of any pretended license under their authority.

Henshaw v. Clark, 14, 460 (1859). Where plaintiffs derived their title to land from a grant of the Mexican government, and a United States patent confirming the same, the land was private property, and defendants did not, as miners, have a license from either State or Federal government to enter upon the same and extract minerals therefrom.

Smith v. Doe, 15, 100 (1860). As a general rule, the public mineral lands of the States are open to the occupancy of every person who in good faith chooses to enter upon them for the purpose of mining, and under the provisions of the statute of California (Wood's Dig. 527) all lands are presumed to be public lands until title is shown to have passed from the government to private parties.

Morenhaut v. Wilson, 52, 263 (1877). "The instant an abandon

1 The location of petroleum lands is now regulated by act of Congress, Feb. 11, 1897.

ment takes place a vacancy in the possession occurs. The right of possession of the former occupant is absolutely lost, and the land becomes publici juris, and free to the occupation of the next comer, whoever it may be."

Du Prat v. James, 65, 555 (1884). Ground forfeited by failure to perform the amount of labor required by law is subject to instant relocation, although in the occupancy of the original locator.

Hall v. Arnott, 80, 348 (1889). A valid location or relocation can be made only when the ground is open to exploration and appropriation. Armstrong v. Lower, 6, 393 (1882). Only the unoccuColorado. pied and unappropriated mineral lands of the general government are open to exploration and location. When a locator has fully complied with the law in locating his claim, he is entitled to exclusive possession and enjoyment thereof until it is forfeited or abandoned.

King v. Edwards, 1, 235 (1870). Upon forfeiture the

Montana. ground of a mining claim becomes again unappropriated mineral land of the United States, and is open to relocation.

Golden Fleece G. & S. M. Co. v. Cable Con. G. & S. M.

Nevada. Co., 12, 312 (1877). When a mining claim has been forfeited by reason of non-compliance with mining regulations, or has been abandoned, or the locator is not a citizen of the United States, the ground is open to relocation.

Eilers v. Boatman, 3, 159 (1881). As between two locators, Utah. one cannot locate ground of which the other is in actual possession under claim or color of right, because such ground would not be vacant and unoccupied; but the possession of a vein recognized by the mining laws, to which protection is given, is the possession of one who holds the surface where the vein makes its apex. The location of a vein or lode made upon the surface, where it finds its apex, will not be defeated by secret underground working by parties having no possession of or right to the surface embracing it.

Wheeler v. Smith, 5, 404 (1893). Land containing Washington. a deposit of limestone, entirely devoid of ore, cannot

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be located under the mineral laws of the United States. Mines as known to those laws embrace nothing but deposits of valuable mineral ores, and do not include mere masses of non-mineralized rock, whether rock in place or scattered about through the soil." "A mining claim, whether lode or placer, is not established or entitled to be patented under the mineral laws of the United States unless it contains some of the metals for which mining works are prosecuted."

The Stone and Timber Act of June 3, 1878, which authorizes the sale in Washington, Oregon, California, and Nevada of land chiefly valuable for stone, and which prohibits the acquisition of mineral lands under its provisions, shows an intention on the part of Congress to prohibit the acquisition of stone land under the mineral laws.1

1 Freezer v. Sweeney, 8 Mont. 508, to the contrary. The rule in Wheeler v. Smith was followed in the Land Office, but the act of Aug. 4, 1892, has settled

all controversy on the subject of building stone by making deposits of such subject to location as placers.

LAND OFFICE DECISIONS.

Lands containing the following deposits may be located under the mining acts: Borax, Copp, 100 (1893), 1 L. D. 561 (1883); Diamonds, id. 88 (1872); Deposits of fire clay or kaolin, id. 121 (1873), id. 176 (1875); Dobbs Placer Mine, 1 L. D. 565 (1883); Iron, Copp, 124 (1873), 134 (1874); Roofing slate, id. 143 (1874); Umber, id. 161 (1875); Limestone or marble, id. 176 (1875); Mica, id. 182 (1875); Gypsum, 1 L. D. 560 (1881); Carbonate and nitrate of soda, sulphur, alum, and asphalt, 1 L. D. 561 (1883); Phosphate of lime, Gary v. Todd, 18 L. D. 53 (1894).

If these are found in veins or rock in place, the proceedings must be those prescribed for lode claims. If not so found, then they must be located as placer claims. Copp, 124 (1873); id. 134 (1874); id. 161 (1875).

Land may not be located as mineral land on the ground that it contains a deposit of brick clay: Dunluce Placer Mine, 6 L. D. 761 (1888); or hot mineral springs: Morrill v. Margaret Min. Co., 11 L. D. 563 (1890); or aluminum, Jordan v. Idaho Co., 20 L. D. 500 (1895).

Where land is of little value for agricultural purposes, but is essential to the proper development of certain mines, for running tunnels thereto, it will be withheld from sale as agricultural land and disposed of only under the mineral land law. Copp, 186 (1876). Mineral lands within the limits of unconfirmed Spanish or Mexican grants in Arizona, reported to Congress for action, are reserved from sale and from exploration and location by mineral claimants. Copp, 308 (1881). "Lands valuable for minerals," in Rev. Stats. 2318, means "lands which it will pay to mine by the usual modes of mining." Townsite of Deadwood, Copp, 324 (1881).

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 more valuable on this account than for agricultural purposes, is within the meaning of Rev. Stats. 2318, 2319. 1 L. D. 560 (1881).

Where the claim in effect is for a water right, only to develop placer claims at a distance, it is not competent to issue patent therefor as a placer claim. Robt. S. Hale, 3 L. D. 536 (1885).

Stone that is useful only for general building purposes does not render land containing the same, subject to appropriation under the mining laws, or except it from pre-emption entry. "Congress seems to have recognized the fact that a stone quarry is not a placer mine,' and it passed an act June 3, 1878 (20 Stat. 89), providing for timber and stone entries. The stone in the tract in controversy has no peculiar property or characteristic that gives it especial value, such as attaches to gypsum, limestone, mica, marble, slate, asphaltum, borax, auriferous cement, fire clay, kaolin, or petroleum, and its value in this particular mine appears to be its proximity to the town of Alexandria, which has come into some prominence, having been

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