3. MINERAL LANDS OPEN TO PURCHASE. Lands known to be valuable for minerals are subject to disposition by the United States under the mining laws only. Deffeback v. Hawke, 115 U. S. 392, p. 406. Colorado Coal, etc., Co. v. United States, 123 U. S. 307, p. 327. Davis v. Weibbold, 139 U. S. 507. Walker v. Southern Pacific R. Co., 24 L. D. 172, p. 176. Coleman v. McKenzie, 28 L. D. 348, p. 352. See Mining Co. v. Consolidated Min. Co., 102 U. S. 167, Smith v. Hill, 89 Cal. 122, p. 129. p. 174. Lands valuable for mineral are lands which it will pay to mine by the usual modes of mining. Caledonia Min. Co. v. Rowen, 2 L. D. 714, p. 719. Duffy Quartz Mine, In re, 18 L. D. 259, p. 261. See Deffeback v. Hawke, 115 U. S. 392. Callahan v. James, 141 Cal. 291. This section provides for exploration and purchase of mineral deposits belonging to the United States. Lockhart v. Johnson, 181 U. S. 516, p. 519. The Government of the United States has opened all minerals and public mineral lands to exploration and purchase, and, as a reward to the successful explorer, grants to him the right to extract and possess the mineral within certain prescribed limits. Creede & Cripple Creek Min. Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 345. Erhardt v. Boaro, 113 U. S. 527, p. 535. Deffeback v. Hawke, 115 U. S. 392, p. 402. Parley's Park Min. Co. v. Kerr, 130 U. S. 256, p. 261. Blackburn v. Portland Gold Min. Co., 175 U. S. 571, p. 586. United States v. Plowman, 216 U. S. 372, p. 374. Black v. Elkhorn Min. Co., 49 Fed. 548, p. 550. Tyee Consol. Min. Co. v. Langstedt, 1 Alaska 439, p. 460. Wright v. Lyons, 45 Oreg. 167, p. 172. See Ducie v. Ford, 138 U. S. 587, p. 591. South End Min. Co. v. Tinney, 22 Nev. 19, p. 62. By this section all minerals and all public mineral lands, both surveyed and unsurveyed, are declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law and according to local customs and rules of miners. O'Reilly v. Campbell, 116 U. S. 418. Davis v. Weibbold, 139 U. S. 507, pp. 515, 516. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 63. Billings v. Aspen Min., etc., Co., 52 Fed. 250, p. 251. Johnston v. Morris, 72 Fed. 890, p. 897. Meydenbauer v. Stevens, 78 Fed. 787, p. 789. Waterloo Min. Co. v. Doe, 82 Fed. 45, p. 49. Lone Jack Min. Co. v. Megginson, 82 Fed. 89, p. 93. McFadden v. Mountain View Min., etc., Co., 87 Fed. 154, p. 155. Yard, In re, 38 L. D. 59, p. 61. Meiklejohn v. Hyde, 42 L. D. 144, p. 145. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 320. Cook v. Johnson, 3 Alaska 506, p. 530. Altoona Quicksilver Min. Co. v. Integral, etc., Co., 114 Cal. 100, p. 104. Bernard v. Parmelee, 6 Cal. App. 537, p. 539. Noyes v. Clifford, 37 Mont. 138, p. 148. Hand v. Cook, 29 Nev. 518, p. 530. Bay v. Oklahoma, etc., Min. Co., 13 Okla. 425, p. 430. Allen v. Dunlap, 24 Oreg. 229, p. 233. See Lohman v. Helmer, 104 Fed. 178, p. 181. Hanson v. Craig, 170 Fed. 62. Ferris v. McNally, 45 Mont. 20, p. 27. Nash v. McNamara, 30 Nev. 114, p. 128. The entire mining statute contemplates that the right or privilege of exploration and occupation is given as preliminary to a purchase by the locator, and that if it shall be ascertained that the location contains valuable mineral deposits he will proceed without unnecessary delay to obtain a patent therefor by making proof of location and labor thereon and payment of the purchase price. United States v. Nelson, 27 Fed. Cas. 86. It is only lands valuable for minerals and belonging to the United States that are open to purchase and which may be protected for such mineral deposits under the mining laws. Richmond Silver Min. Co. v. Davey, 10 C. L. O. 291. Lands within the boundaries of a Mexican or Spanish grant in New Mexico are open to exploration and purchase within the meaning of this section of the statute. Lockhart v. Wills, 9 N. Mex. 344, pp. 347, 352. Lockhart v. Leeds, 10 N. Mex. 568, p. 594. This section provides for the disposition alike of lodes and veins, and of placer deposits. Townsite Clause, In re, 5 L. D. 256, p. 257. Mutchmor v. McCarty, 149 Cal. 603, p. 610. This section is not broad enough to include lands lying below ordinary high tide. Mineral lands are not subject to acquisition under the homestead laws. 4. ACQUISITION SUBJECT TO CUSTOMS OF MINERS. a. EFFECT OF SECTION ON REGULATIONS AND CUSTOMS. This section declares that all mineral deposits are free and open to exploration and purchase under regulations prescribed by law and according to local customs or rules of miners in the several mining districts. Chapman v. Toy Long, 5 Fed. Cas. 497. Local customs or rules of miners must be complied with the same as United States laws. Strickland v. Commercial Min. Co., 55 Oreg. 48, p. 51. Congress, by declaring that all valuable mineral deposits are free and open to exploration and purchase, thereby gave the sanction of law to the regulations which the miners in any locality might stipulate for their several occupations and working of mining claims; but this did not give to them authority to determine how the title to the land itself might be acquired. Benson Min., etc., Co. v. Alta Min. Co., 145 U. S. 428, p. 431. All existing rights to the public lands were recognized to the extent that they had attached or been acquired under local rules or customs not inconsistent with the laws of the United States. Cleary v. Skiffich, 28 Colo. 362, p. 371. Congress by express enactment has sanctioned and continued in force all local laws and customs not inconsistent with the laws of the United States. Schultz v. Keeler, 2 Idaho 305, p. 309 (333). See Schultz v. Keeler, 2 Idaho 532 (568). It is a fair presumption that Congress by this section intended to affirm and continue in force the well-known custom in the mining States of the location of mining claims by agents. Schultz v. Keeler, 2 Idaho 305, p. 309 (333). See Schultz v. Keeler, 2 Idaho 532, p. 534 (568). Rush v. French, 1 Ariz. 99, p. 116. Murley v. Ennis, 2 Colo. 300. Boucher v. Mulver Hill, 1 Mont. 306, p. 310. A custom limiting placer claims in a particular locality to 80 rods in length is not in conflict with the laws of Congress and can be regarded as reasonable. Rosenthal v. Ives, 2 Idaho 244, p. 249. See Smelting Co. v. Kemp, 104 U. S. 636, p. 652. Erhardt v. Boaro, 113 U. S. 527, p. 535. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522. b. REGULATIONS AND CUSTOMS -OPERATION AND EXTENT. The fact that a mining rule was adopted and kept on foot as the law for a considerable period of time would be prima facie evidence that it was in force at one time and being in force once a presumption would arise that it continued in force until it is shown to have fallen into disuse and another practice generally adopted and followed. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522, p. 530. Tioga Consol. Min. Co., In re, 8 C. L. O. 88, p. 89. The existence of a rule, regulation, or custom among miners as to the extent of a mining claim is a question of fact to be found by the jury from all the evidence in a case. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522, p. 528. Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666, p. 674. A custom reasonable in itself and generally observed will prevail against a written mining law which has fallen into disuse, and whether or not such a mining law is in force at any given time is a question of fact for the jury. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522, p. 529. The mere violation of a mining rule by a few persons would not abrogate it where it is generally observed. Its disregard and disuse must become so extensive as to show that in practice in the particular locality it has become generally disused. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522, p. 530. See Tioga Consol. Min. Co., In re, 8 C. L. O. 88, p. 89. No distinction is made by the statute of California between a custom or usage the proof of which must rest in parol and a regulation which may be adopted by a miners' meeting and embodied in a written local law. Such a law does not, like a statute, acquire validity by the mere enactment but from the customary obedience and acquiescence of the miners following its enactment, and it becomes void whenever it falls into disuse or is generally disregarded. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522, p. 528. 5. MINERAL LANDS IN RESERVATIONS EXCLUDED. Mineral lands included within the limits of a military reservation are not open to exploration and purchase under this section. Fort Maginnis, In re, 1 L. D. 552, p. 553; 8 C. L. O. 137. Where rights have attached to mineral land in favor of the locator of a mining claim the land during the continuance of the claim becomes by force of the mining laws appropriated to the specific purpose of development and working of the mine located, and it can not during such time be set apart by the Executive for public uses. Fort Maginnis, In re, 1 L. D. 552, p. 554. Fort Maginnis, In re, 8 C. L. O. 137. 6. LANDS VALUABLE FOR MINERALS. a. MEANING AND PROOF. This section makes all valuable mineral deposits subject to occupation and purchase under the mining laws. Aspen Consol. Min. Co. v. Williams, 27 L. D. 1, p. 15. To constitute a valuable deposit within the meaning of this section there must be proof to show a deposit of substantial value. Royal K Placer, In re, 13 L. D. 86, p. 89. See United States v. Iron Silver Min. Co., 128 U. S. 673. Land must appear as mineral in character as a present fact and from actual production of mineral. Davis v. Weibbold, 139 U. S. 507, p. 520. Dughi v. Harkins, 2 L. D. 721. Rucker v. Knisley, 14 L. D. 113, p. 115. Magalia Gold Min. Co. v. Ferguson, 3 L. D. 234. Magalia Gold Min. Co. v. Ferguson, 6 L. D. 218. Land which does not as a present fact contain gold and which can not be sold as mineral land is not subject to entry under the statute. Walton v. Batten, 14 L. D. 54, p. 57. To entitle lands to be appropriated under the mining laws the mineral character of the deposits must be sufficient to be workable at profit above that for other purposes. Jones v. Aztec Land & Cattle Co., 34 L. D. 115, p. 117. See South Dakota Min. Co. v. McDonald, 30 L. D. 357. The mineral character of the land in controversy must appear as a fact and it must be shown that mineral exists in such quantities as will justify expenditures in an effort to obtain it. Diamond Coal, etc., Co. v. United States, 233 U. S. 236, p. 240. Johns v. Marsh, 15 L. D. 196, p. 198. See Royal K Placer, In re, 13 L. D. 86. Winters v. Bliss, 14 L. D. 59. In order to bring land within the class subject to mineral entry it must appear that the land is known at the time to be valuable for its minerals and that minerals are found in such quantity as to justify expenditures in the effort to extract them. Dower v. Richards, 151 U. S. 658, p. 663. Downs, In re, 7 L. D. 71, p. 73. See Deffeback v. Hawke, 115 U. S. 392, p. 404. Commissioners of Kings County v. Alexander, 5 L. D. 126. United States v. San Pedro & Canon del Agua Co., 4 N. Mex. 225, p. 294. Lands recognized as mineral by the standard authorities, where the same is found in quantity and quality to render the land sought to be patented more valuable on this account than for agricultural purposes, comes within the purview of the mining act. Northern Pacific R. Co. v. Soderberg, 104 Fed. 425, p. 427. The evidence of a large number of witnesses, including civil engineers, mining experts, practical miners, mining engineers, and assayers, to the effect that the formation of lands for which an application for entry has been made is similar to that of surrounding mineral bearing lands, and numerous specimens from croppings on the land contain mineral, and that all the subdivisions of the land in controversy were more valuable for mineral purposes than for agricultural, is sufficient to establish its mineral character. Santa Clara Min. Assoc. v. Scorsur, 4 L. D. 104, p. 105. The term "valuable mineral deposits" in this section, the expression "lands valuable for minerals" in section 2318, R. S., and the word "mines" in section 2323, R. S., the term "valuable deposits" in section 2325, R. S., as well as the expression "mines of gold" in section 2392, all refer to substantially the same thing and embrace both veins or lodes and placers. Hawke v. Deffeback, 4 Dak. 20, p. 33. The value and not the kind of any given mineral deposit is the controlling key by which to determine the question whether lands containing such deposits are "valuable for minerals" and are "mineral lands." Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 240. If land is mineral it is subject to location only under the provisions of the mining law without reference to the relative value of a portion of the tract for other purposes. Caledonia Min. Co. v. Rowen, 2 L. D. 714, p. 717. See Kemp v. Starr, 6 C. L. O. 3. Where land has been reported as mineral upon the plat it is presumptively mineral until the contrary appears; but if the land has been mined over until the soil has been washed from the surface of one-fourth of the area and has then been abandoned, it is not a strong prima facie case in favor of its still being mineral land within the meaning of the law. Cutting v. Reininghaus, 7 L. D. 265, p. 267. See Cleghorn v. Bird, 4 L. D. 478. The decisions of the officers of the Federal Land Department show that some lands have been held subject to location as mineral under the mining laws which can scarcely be regarded as the subject of mining in the ordinary sense. Johnson v. California Lustral Co., 127 Cal. 283, p. 286. The form and mode of occurrence of valuable ore, however controlling and influential in determining its geological character, is not a matter upon which it can be excluded from the terms of the statute. Hyman v. Wheeler, 29 Fed. 347, p. 354. Proof of the mineral character of iand must be specific and based upon actual production of mineral and must show that the mineral value of the land is greater than its agricultural value. Berry v. Central Pacific R. Co., 15 L. D. 463, p. 465. Dughi v. Harkins, 2 L. D. 721. Cleghorn v. Bird, 4 L. D. 478. Commissioners of King's County v. Alexander, 5 L. D. 126. Spong, In re, 5 L. D. 193. Magalia Gold Min. Co. v. Ferguson, 6 L. D. 218. See Holter v. Northern Pac. R. Co., 30 L. D. 442, p. 448. |