Where land has been explored and worked by miners for many years and finally abandoned, it can not thereafter be assumed to be lands valuable for mineral within the meaning of this statute where it has been preempted and used for agricultural purposes. United States v. Reed, 28 Fed. 482, p. 487. Where land is shown to be more valuable for mineral than for agricultural purposes there is no authority for a segregation survey. Quigley v. California, 24 L. D. 507. Where a mineral claimant fails to make proper and timely objection to an agricultural entry the Land Department must assume that none exists. Caribou Lode, In re, 24 L. D. 488, p. 489. 5. MINERAL AND AGRICULTURAL CONTESTANTS-BURDEN OF PROOF. In a contest between mineral and agricultural claimants to prevent the issuance of a patent to the agricultural entryman the burden of proof is upon the mineral claimant to show affirmatively the mineral character of the land and to prove that it is valuable for minerals within the meaning of this section. Small v. Howell, 9 C. L. O. 164. The burden of proof is upon a mineral claimant to show that land is more valuable for mineral therein contained than for agricultural purposes, where such land is not withdrawn as mineral, as contemplated in this section, or returned as such by the surveyor general. Hunt v. Bartholomew, 10 C. L. O. 293. In controverted cases as to whether land is agricultural or mineral in character the rule of the Land Department is that it will be considered agricultural or mineral according as it is more valuable for mining or agricultural purposes, and its determination of that fact based upon knowledge obtained at the time as to the character of the land is conclusive. Barden v. Northern Pacific R. Co., 154 U. S. 288, p. 329. United States v. Lavenson, 206 Fed. 755, p. 763. The rule of the Land Department is that if the land is worth more for agricultural than for mining it is not mineral land within the meaning of this section, though it may contain some measure of gold or silver or both. United States v. Reed, 28 Fed. 482, p. 486. In determining whether land is more valuable for mining than for agriculture the advantages of hydraulic mining can not be considered where there is no available water for that purpose. United States v. Reed, 28 Fed. 482, p. 486. In determining whether land is more valuable for its mineral deposits than for agriculture no account can be taken of the profits that would or might result from mining under other and more favorable circumstances and conditions than are actually existing. United States v. Reed, 28 Fed. 482, p. 486. The statutory reservation of lands, valuable for minerals, from sale, except under the mining laws, is operative as between contending mineral and agricultural claimants only as the lands are known to be more valuable for their minerals at the date of the certificate of final entry. Leach v. Potter, 24 L. D. 573, p. 574. 6. PARTICULAR MINERAL SUBSTANCES INCLUDED IN SECTION. See sec. 2319, p. 18. The term "lands valuable for minerals" as used in this and succeeding sections applies to all lands chiefly valuable for nonmetalliferous deposits, such as alum, asphaltum, borax, guano, diamonds, gypsum, marble, mica, slate, amber, petroleum, limestone, and building stone, rather than for agricultural purposes.. Webb v. American Asphaltum Min. Co., 157 Fed. 203, p. 205. See Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, p. 534. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 240. The presence of a thick vein of coal in public land does not render its character mineral when shown not to be susceptible of mining at a profit. Johnson v. California Lustral Co., 127 Cal. 283, p. 286. Green v. Grumbly (May 20, 1896, unreported). Lands containing deposits of gypsum, which is of similar formation to limestone, are not subject to disposal under the mining act. Duvall, In re, 7 C. L. O. 148. Hooper, In re, 8 C. L. O. 120. Lands valuable for deposits of phosphate are to be classed as mineral lands. Gary v. Todd, 18 L. D. 58. Florida Cen. etc., R. Co., In re, 26 L. D. 600, p. 601. See Alldritt v. Northern Pac. R. Co., 25 L. D. 349. Union Oil Co., In re, 25 L. D. 351. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 241. At the time of the passage of this act Congress did not have in contemplation the reservation of lands containing petroleum under the designation of mineral land. Union Oil Co., In re, 23 L. D. 222, p. 227. See Dunham v. Kirkpatrick, 101 Pa. St. 36. Gill v. Westor, 110 Pa. St. 312. Land containing a valuable deposit of gypsum cement is not subject to agricultural entry. Phifer v. Heaton, 27 L. D. 57, p. 58. Lands valuable for rock called lustral or paint stone, worked by the ordinary process of mining, are held to be lands valuable for mineral within the meaning of this section. Johnson v. California Lustral Co., 127 Cal. 283, p. 285. SECTION 2319, REVISED STATUTES. 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, by citizens of the United States and those who have declared their intention to become such 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. This section is the same as section 1, act of May 10, 1872 (17 Stat. 91), p. 677. See 14 Stat. 251, sec. 1, p. 632; 17 Stat. 91, sec. 1, p. 677. A. OWNERSHIP OF MINERAL LANDS-MINING PERMITTED. B. DISPOSAL OF MINERAL LANDS, p. 11. C. MINING LOCATIONS, p. 21. D. QUALIFICATIONS OF LOCATORS, p. 26. F. MINING CLAIM AS PROPERTY, p. 32. G. MINERAL AND AGRICULTURAL CLAIMANTS-BURDEN OF PROOF, p. 33. H. POSSESSION OF MINING CLAIM JURISDICTION OF FEDERAL COURTS, p. 34. I. PATENT-EFFECT AS A CONVEYANCE, p. 34. A. OWNERSHIP OF MINERAL LANDS-MINING PERMITTED. 1. GOVERNMENT OWNERSHIP. 2. MINING ON PUBLIC LANDS PERMITTED. 3. POLICY TO ENCOURAGE MINING. 1. GOVERNMENT OWNERSHIP. Under the common law of England mines of gold and silver were the exclusive property of the crown and did not pass under a grant by the king under the general designation of lands or mines. Hicks v. Bell, 3 Cal. 219. See United States v. San Pedro & Canon, etc., Co., 4 N. Mex. 225, p. 294. Queen v. Earl of Northumberland, 1 Plow. 310. The statutes asserting paramount title to the United States to mineral lands are in harmony with the laws and practices of other countries on the same subject. United States v. San Pedro & Canon del Agua Co., 4 N. Mex. 225, p. 304. While the superior title to mineral lands is in the United States and no state or territorial law can effect in any manner this superior title or control the United States in its disposition of such lands, yet by a valid location of a mining claim the locator acquires a qualified ownership that is recognized as property. Gorman Min. Co. v. Alexander, 2 S. Dak. 557, p. 563. 56974°-Bull. 94-15-4 2. MINING ON PUBLIC LANDS PERMITTED. Congress has by tacit consent permitted the mining of ores containing precious metals from government lands without receiving any compensation and without requiring the miners to buy or pay for such land. Forbes v. Gracey, 94 U. S. 762, p. 763. Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, p. 16. Fort Maginnis, In re, 1 L. D. 552, p. 554. The license given a locator by this section to occupy and work the mining ground is sufficient for that purpose until withdrawn by Congress, without purchasing it. United States v. Nelson, 27 Fed. Cas. 86. The mining laws do not authorize the location of a mining claim upon any but public lands and such a location made upon lands held in private ownership can have no validity. Riley, In re, 33 L. D. 68, p. 70. While the title to veins and lodes of minerals may remain in the United States, yet if such veins and lodes are discovered within lands or lots held under a town site patent, they are not open to occupation and purchase because the same are not situated upon lands belonging to the United States, as it is only lands belonging to the United States which are subject to location under the mining laws. Williams, In re, 9 C. L. O., 147. This and other sections of the statute are said to be the charter of the miners' rights upon the public domain. Shreve v. Copper Bell Min. Co., 11 Mont. 309, p. 332. There is no limitation or restriction in this section as to the kind or class of mineral deposits which are thus made subject to exploration and purchase and where mineral deposits are found in the public lands they are declared to be free and open to exploration and purchase. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 241. 3. POLICY TO ENCOURAGE MINING. By this statute Congress has declared it to be the policy of the country to encourage the development of its mineral resources, and it is a declaration of the freedom of mineral land to exploration and occupation. Heydenfeldt v. Daney, 93 U. S. 634, p. 638. See Creede & Cripple Creek, etc., Co. v. Uinta Tunnel, etc., Co., 196 U. S. 337, p. 342. Overgaard v. Westerberg, 3 Alaska 168, p. 174. Cascaden v. Bortolis, 3 Alaska 200, p. 206. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 659. Whiting v. Straup, 17 Wyo. 1, p. 25. The policy of the Government has been to recognize the rights of discoverers of valuable mineral deposits to appropriate for mining purposes the ground embracing their discoveries and to take therefrom the ores without rendering any account to the Government therefor. O'Connell v. Pinnacle Gold Mines Co., 131 Fed. 106, p. 109. It has been the general policy of the Government to reserve mineral lands from entry and sale except as otherwise specifically provided. Crafts, In re, 36 L. D. 138, p. 139. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233. The object of the mining laws was to develop the mining resources of the United States. Yard, In re, 38 L. D. 59, p. 64. B. DISPOSAL OF MINERAL LANDS. 1. ACQUISITION UNDER PRIOR MINING LAWS. 2. LAND DEPARTMENT CHARGED WITH DISPOSAL OF MINERAL LANDS. 3. MINERAL LANDS OPEN TO PURCHASE. 4. ACQUISITION SUBJECT TO CUSTOMS OF MINERS. a. EFFECT OF SECTION ON REGULATIONS AND CUSTOMS. b. REGULATIONS AND CUSTOMS OPERATION AND EXTENT. 5. MINERAL LANDS IN RESERVATIONS EXCLUDED. 6. LANDS VALUABLE FOR MINERALS. a. MEANING AND PROOF. b. PROOF INSUFFICIENT TO SHOW MINERAL CHARACTER. 7. VARIETY OF MINERALS INCLUDED. a. GENERAL PRINCIPLES. b. SPECIFIC MINERALS INCLUDED. C. SPECIFIC MINERALS NOT INCLUDED. 1. ACQUISITION UNDER PRIOR MINING LAWS. The acts of July 26, 1866 (14 Stat. 251), and of May 10, 1872 (17 Stat. 91), both provided for the acquisition of title by patent to mineral lands. The first act applied to such as constituted lode claims, and the second to such as constituted placer claims. Steel v. Smelting Co., 106 U. S. 447, p. 450. The act of July 26, 1866 (14 Stat. 251), remained in force only six years and was then superseded by the act of May 10, 1872 (17 Stat. 91), the substance of which is embodied in the various sections of the revised statutes. Del Monte Min. etc. Co. v. Last Chance Min. etc. Co., 171 U. S. 55, p. 65. The original act of July 26, 1866 (14 Stat. 251), declares that all mineral deposits on public lands are free and open to exploration and the lands in which they are found are open to occupation and purchase by properly qualified persons. Steel v. Smelting Co., 106 U. S. 447, p. 449. Lands chiefly valuable for mineral deposits of whatever kind or nature may be properly disposed of under mining laws. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 241. 2. LAND DEPARTMENT CHARGED WITH DISPOSAL OF MINERAL LANDS. The Land Department is charged with the duty of disposing of the public lands in the manner provided by law and its officers must determine the character of the land and dispose of it only under the law applicable, and nonmineral land can not be disposed of under the mineral laws. Ferrell v. Hoge, 29 L. D. 12, p. 13. Lands containing mineral deposits and declared to be open to exploration and purchase belong to the United States, and until the legal title has passed these lands are within the jurisdiction of the Land Department, and while equitable rights may be established yet Congress retains a certain measure of control. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 70. |