b. PROOF INSUFFICIENT TO SHOW MINERAL CHARACTER. The term "mineral" or "mineral lands" is not applicable to lands in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. Deffeback v. Hawke, 115 U. S. 392, p. 404. Pike's Peak Lode, In re, 10 L. D. 200, p. 204. United States v. San Pedro & Canon etc. Co., 4 N. Mex. 225, p. 294. Cleary v. Skiffich, 28 Colo. 362, p. 368. The fact that portions of land claimed as mineral contained particles of gold will not necessarily impress it with the character of mineral land; but it must contain metal in such quantities as to make it available and valuable for mining purposes and any other construction would operate to reserve from the uses of agriculture land which is practically worthless for any other purpose. Cutting v. Reininghaus, 7 L. D. 265, p. 267. Proof that neighboring or adjoining lands are mineral in character, or that the land in controversy may by possibility develop minerals in such quantity as will establish its mineral rather than its agricultural character, is not sufficient to show its present mineral character. Magalia Gold Min. Co. v. Ferguson, 6 L. D. 218; 14 C. L. O. 212. Kane v. Devine, 7 L. D. 532, p. 536. Creswell Min. Co. v. Johnson, 8 L. D. 440, p. 442. Blackburn v. United States, 5 Ariz. 162, p. 166. See United States v. Reed, 28 Fed. 482. Cleghorn v. Bird, 4 L. D. 478. Madison v. Octave Oil Co., 154 Cal. 768, p. 772. Land principally valuable for agriculture or for residences and business purposes are not subject to patent as mineral lands within the meaning of the statute. Largey v. Black, 10 L. D. 156, p. 157. See Western Pacific R. Co. v. United States, 108 U. S. 510. Mullan v. United States, 118 U. S. 271. Colorado Coal, etc. Co. v. United States, 123 U. S. 307. An affidavit of protest will offset the nonmineral affidavit of an agricultural claimant and leave the legal presumption arising from the surveyor general's return to be overcome by evidence. Walton v. Batten, 14 L. D. 54, p. 56. See Mulligan v. Hanson, 10 L. D. 311. 7. VARIETY OF MINERALS INCLUDED. a. GENERAL PRINCIPLES. The mining laws embrace not only lands containing metallic minerals but all valuable mineral deposits of whatever kind or nature, if shown to be more valuable on account of such deposits than for agricultural purposes. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 240. 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 lands sought to be patented more valuable on this account than for purposes of agriculture is regarded as being valuable mineral deposits within the meaning of this section. Hooper, In re, 1 L. D. 560, p. 561. McGlenn v. Wienbroeer, 15 L. D. 370, p. 373. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 239. Alldritt v. Northern Pac. R. Co., 25 L. D. 349, p. 350. Union Oil Co., In re, 25 L. D. 351, p. 353. Florida Central etc. R. Co., 26 L. D. 600, p. 601. Phifer v. Heaton, 27 L. D. 57, p. 58. Ferrell v. Hoge, 27 L. D. 129, p. 130. Tulare Oil & Min. Co. v. Southern Pac. R. Co., 29 L. D. 269, p. 271. Morrill v. Northern Pac. R. Co., 30 L. D. 475, p. 479. Piatt, In re, 33 L. D. 270, p. 271. Elliott v. Southern Pac. R. Co., 35 L. D. 149, p. 151. See Northern Pac. R. Co. v. Soderberg, 188 U. S. 526. There is both legislative declarations and the highest judicial determination that the term "mineral lands" in the public land laws includes minerals other than those of the metallic class. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 237. See 14 Op. Atty. Gen. 115. Lands containing valuable mineral deposits whether metalliferous or fossilliferous and 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. Piatt, In re, 33 L. D. 270, p. 271. See sec. 2318, p. 8. b. SPECIFIC MINERALS INCLUDED. The mineral deposits mentioned in this and succeeding sections include nonmetalliferous deposits such as alum, amber, asphaltum, borax, diamonds, gypsum, limetone, marble, mica, petroleum, and building stone, as well as deposits bearing gold, silver, and other metals. Webb v. American Asphaltum Min. Co., 157 Fed. 203, p. 205. Lands containing deposits of asphaltum, borax, auriferous cement, fire clay, gypsum, kaolin, limestone, marble, mica, petroleum, slate, and like substances come within the operation of the mining laws when shown to be more valuable because of such deposits than for agricultural purposes. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, 239. Maxwell v. Brierly, 10 C. L. O. 50. Johnson v. California Lustral Co., 127 Cal. 283, p. 286. Nephi Plaster etc. Co. v. Juab County, 33 Utah 114, p. 118. See McQuiddy v. California, 29 L. D. 181. The term valuable mineral deposits includes all minerals and alkaline substances such as borax, sulphur, alum, and asphalt. Regulations, In re, 1 L. D. 561. See Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 239. Calcium phosphate or rock phosphate is mineral within the meaning of the mining laws. San Francisco Chemical Co. v. Duffield, 201 Fed. 830, p. 836. Webb v. American Asphaltum Co., 157 Fed. 203. A great variety of substances such as valuable clays, gypsum, lime, stone, phosphate, guano, marble, and slate, building stone, petroleum, etc., may render land of mineral character if the quality and market conditions make the land chiefly valuable for working such deposits with profit. Jones v. Aztec Land & Cattle Co., 34 L. D. 115, p. 117. See Wright v. Larson, 7 L. D. 555. McKay, In re, 8 L. D. 526. Keller v. Bullington, 11 L. D. 140. Phifer v. Heaton, 27 L. D. 57. King v. Bradford, 31 L. D. 108, p. 110. Maxwell v. Brierly, 10 C. L. O., Holman v. Utah, 41 L. D. 314. p. 50. While coal lands are mineral lands, yet they are not subject to entry under the mining laws, but have been disposed of under special statutes. Truan, In re, 2 L. D. 827. Gypsum and limestone are held to be minerals within the meaning of this section. Hooper, In te, 1 L. D. 560. Long v. Isaksen, 23 L. D. 353, p. 356. See Holman v. Utah, 41 L. D. 314. Lands containing valuable deposits of guano are subject to entry as mineral lands. King v. Bradford, 31 L. D. 108, p. 110. See Richter v. Utah, 27 L. D. 95. Proof that land contains a very extensive quantity of iron ore of superior quality and that mineral can be secured from the land in paying quantities is sufficient to meet the requirements of the law. Tinkham v. McCaffrey, 13 L. D. 517, p. 518. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 238. See Royal K Placer, In re, 13 L. D. 86. Lands more valuable for deposits of limestone or marble than for purposes of agriculture, and lands containing valuable deposits of kaolin are subject to disposal under the mining laws. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 238; Copp's Min. Lands 194. Hayden v. Jamison, 26 L. D. 373, p. 374. Florida Central, etc., R. Co., In re, 26 L. D. 600, p. 601. Piatt, In re, 33 L. D. 270, p. 271. Maxwell v. Brierly, 10 C. L. O. 50. See Hooper, In re, 1 L. D. 560. Rolfe, In re, Copp's Min. L. 176. Lands valuable for deposits of marble and slate and more valuable on that account than for agricultural purposes are mineral lands within the meaning of the mineral laws. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 235. Morrill v. Northern Pacific R. Co., 30 L. D. 475, p. 480. See Schrimpf v. Northern Pacific Co., 29 L. D. 327. Johnson v. California Lustral Co., 127 Cal. 283, p. 286. Lands chiefly valuable on account of deposits of petroleum or mineral oil found thereon are mineral lands and subject to disposition under the mining law. Kern Oil Co. v. Clotfelter, 30 L. D. 583, p. 585. See Union Oil Co., In re, 25 L. D. 351. Kern Oil Co. v. Clarke, 30 L. D. 550. Gray Eagle Oil Co. v. Clarke, 30 L. D. 570. Gray Eagle Oil Co. v. Clarke, (on review) 31 L. D. 303. Kern Oil Co. v. Clarke (on review), 31 L. D. 288. Phosphate is classed as a nonmetallic mineral substance, and is included in the class "all valuable mineral deposits," within this section, and is subject to disposal under the mining laws. Phosphate Deposits, In re, 17 C. L. O. 30. See Maxwell v. Brierly, 10 C. L. O. 50. Erie Lode v. Cameron Lode, 17 C. L. O. 74, p. 75. Lands containing valuable deposits of salines, consisting of common salt, sulphate of soda, and carbonate of soda, and such that a person of ordinary prudence would be justified in the further expenditure of labor and means with a reasonable prospect of success in developing a valuable mine thereon, are mineral lands. Elliott v. Southern Pac. R. Co., 35 L. D. 149, p. 152. See Castle v. Womble, 19 L. D. 455. Land more valuable on account of its sandstone deposits than for agriculture is subject to disposal under the mining laws and is not open to settlement under the homestead laws. Hayden v. Jamison, 26 L. D. 373, p. 374. See Hayden v. Jamison, 16 L. D. 537. Hayden v. Jamison, 15 L. D. 276. Beaudette v. Northern Pacific R. Co., 29 L. D. 248, p. 249. Stone is a valuable mineral deposit within the meaning of this section. Bennett, In re, 3 L. D. 116. Maxwell v. Brierly, 10 C. L. O. 50. Sullivan v. Schultz, 22 Mont. 541, p. 546. Johnston v. Harrington, 5 Wash. 73, p. 78. See Wheeler v. Smith, 5 Wash. 704, p. 708. Lands containing valuable deposits of umber or petroleum are subject to entry under the mining laws. Pacific Coast Marble Co. v. Northern Pacific R. Co., 25 L. D. 233, p. 238. Union Oil Co., In re, 25 L. D. 351, p. 354. Dewey, In re, 9 C. L. O. 51. Clayton, In re, Sickel's Min. L. & D. 491. C. SPECIFIC MINERALS NOT INCLUDED. Bog iron is not a mineral. Johnson v. California Lustral Co., 127 Cal. 283, p. 286. Lands containing ordinary brick clay are not mineral lands within the meaning of the mining laws. King v. Bradford, 31 L. D. 108, p. 109. Dunluce Placer Mine, In re, 6. L. D. 761. See Midland R. Co., v. Haunchwood Brick, etc., Co., L. R. 20 Ch. 552. Holman v. Utah, 41 L. D. 314. This section does not authorize a person to locate and purchase lands chiefly valuable for build ng stone. Randolph, In re, 23 L. D. 329, p. 330. Lands chiefly valuable to and apparently desired by the applicant because of a cave or cavern thereon, and for the crystalline deposits and formations of various kinds found thereon, but on which there has been no discovery of mineral and which are not valuable for mineral, are not mineral lands within the meaning of the mining laws. South Dakota Min. Co. v. McDonald, 30 L. D. 357, p. 359. Gravel and sand suitable for using in connection with cement to form a concrete can not be classed as mineral under the mining law. Zimmerman v. Brunson, 39 L. D. 310, p. 312. See Bennett v. Moll, 41 L. D. 584. The words "mineral" and "mineral deposit" are generally used in a sense which excludes salines, because saline lands had not been subject to disposal under the mineral land laws. Leonard v. Lennox, 181 Fed. 760, p. 767. While salt is properly classified as a mineral, yet it is not one of those minerals included or intended by the term "mineral" in the general laws relating to mineral lands. Miller, In re, 33 L. D. 121, p. 122. Stone useful only for general building purposes does not render land containing it subject to appropriation under the mining laws. Zimmerman v. Brunson, 39 L. D. 310, p. 312. Conlin v. Kelly, 12 L. D. 1. See Holman v. Utah, 41 L. D. 314. C. MINING LOCATIONS. 1. WHAT CONSTITUTES-EFFECT OF LOCATION. 2. MINING CLAIMS AS DISTINGUISHED FROM LOCATION. 3. METHODS OF INITIATING RIGHTS. 4. DISCOVERY ESSENTIAL. 5. EXTRALATERAL RIGHTS. 6. NUMBER OF LOCATIONS UNLIMITED. 7. POSSESSORY RIGHTS OF LOCATORS AND OWNERS. 8. OCCUPATION-MEANING. 9. TITLE OF LOCATOR STATUTORY GRANT. 10. STATE REGULATIONS OF LOCATIONS. 1. WHAT CONSTITUTES-EFFECT OF LOCATION. In order to make a mining location under this section the surface ground, including the vein or lode, must be appropriated, and such surface ground must belong to the United States. Traphagen v. Kirk, 30 Mont. 562, p. 573. A location under this section carries with it the grant of an easement from the Government to the person making the location in the ground located; and this easement is the right to the possession and the right to purchase when the law has been fully complied with. Tibbits v. Ah Tong, 4 Mont. 536, p. 537. See Robertson v. Smith, 1 Mont. 410, p. 414. Belk v. Meagher, 3 Mont. 65, p. 79. The location is the foundation of the possessory title, and possession thereunder, as required by law and local rules and customs, keeps the title alive, and the Government holds the superior title in trust for the person thus holding the possessory title. Tibbitts v. Ah Tong, 4 Mont. 536, p. 538. The mining laws grant to a mineral locator more than the mere right to the surface of his claim and to the veins or lodes which have their apices therein; and this section declares the lands in which valuable mineral deposits are found to be open to occupation and purchase. St. Louis Min., etc., Co. v. Montana Min. Co., 113 Fed. 900, p. 902. The rights which miners exercised under the implied license prior to the enactment of the mining statutes were analogous to the rights which they now have under this section and section 2324, except that the acts of Congress are more specific in defining the limitations as to the quantity of ground that may be appropriated and the manner of defining boundaries of mining claims and the giving and recording of notices of the rights claimed. O'Connell v. Pinnacle Gold Mines Co., 131 Fed. 106, p. 109. The lands located are referred to as mining claims and the locators as the owners thereof prior to the time of an application for patent. McFeters v. Pierson, 15 Colo. 201, p. 204. |