subdivisions embrace the improvements, giving in detail the extent and value of the improvements, such as house, barn, vineyard, orchard, fencing, etc., and mining improvements.

113. The testimony should be as full and complete as possible; and in addition to the leading points indicated above, where an attempt is made to prove the mineral character of lands which have been entered under the agricultural laws, it should show at what date, if at all, valuable deposits of mineral were first known to exist on the lands.

114. When the case comes before this office, such decision will be made as the law and the facts may justify; and in cases where a survey is necessary to set apart the mineral from the agricultural land, the necessary instructions will be given to enable the proper party at his own expense, to have the work done, at his option, either by United States deputy, county, or other local surveyor; the survey in such case, where the claims to be segregated are vein or lode claims, must be executed in such manner as will conform to the requirements in section 2320, U. S. Revised Statutes, as to length and width and parallel

end lines.

that he or his grantors have expended, in actual labor and improvements, an amount of not less than five hundred dollars thereon, and that the claim is one in regard to which there is no controversy or opposing claim. After all these proofs are met, he is entitled to have a survey made at his own cost where a survey is required, after which he can enter and pay for the land embraced by his claim.

III. DECISIONS.

1. Land Department.

(See LAND DEPARTMENT, p. 423.) 1. Paragraphs 109, 110, Mining Circular, amended. 19 L. D. 5.

2. The Land Department in issuing a patent must necessarily consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings against the patent. Steel v. St. Louis Sm. Co., 106 U. S. 447.

116. Upon the filing of the plat and field notes of such survey, duly sworn to as aforesaid, you will transmit the same to the surveyor-general for his verification and approval; who, if he finds the work correctly performed, will properly mark out the same upon the original township plat in his office, and furnish authenticated copies of such plat and description both to the proper local land office and to this office, to be affixed to the duplicate and triplicate township plats respectively.

117. With the copy of plat and description furnished the local office and this office, must be a diagram tracing, verified by the surveyor-general, showing the claim or claims segregated, and designating the separate fractional agricultural tracts in each 40-acre legal subdivision by the proper lot number, beginning with No. 1 in each section, and giving the area in each lot, the same as provided in paragraph 45, in the survey of mining claims on surveyed lands.

118. The fact that a certain tract of land is decided upon testimony to be mineral in character is by no means equivalent to an award of the land to a miner. A miner is compelled by law to give sixty days' publication of notice, and posting of diagrams and notices, as a preliminary step; and then, before he can enter the land, he must show that the land yields mineral; that he is entitled to the possessory right thereto in virtue of compliance with local customs or rules of miners, or by virtue of the statute of limitations;

under the law of July 26, 1866. State of Nevada v. Mineral Return, 1 C. L. O. 18-114; Central Pacific R. R. Co. v. Mineral Return, 1 C. L. O. 114.

4. A hearing to determine the character of the land covered by a mineral application, and the question of compliance with the law by the applicant, may be ordered by the local land office on protest filed. Devereux v. Hunter, 11 L. D. 214.

5. When there is any doubt as to whether or not a tract is more valuable for mineral than for agricultural purposes, a final award will not be made to the agricultural claimant; but a hearing will be ordered to determine the true character of the land. Magalia G. M. Co. v. Ferguson, 3 L. D. 234.

6. A hearing may be ordered to determine the correctness of the United States Surveyor

General's return as to the character of certain land. Wallace v. State of California, 5 C. L. O. 22.

7. The question of the character of land should not be decided upon ex parte proof. Rivers v. Burbank, 9 C. L. O. 238.

8. A hearing may be ordered under the mining laws to ascertain facts necessary to a

correct disposal of public lands. Wood v. Seymour, 4 C. L. O. 178.

9. Where land applied for under the agricultural land laws is alleged to be mineral in character, the agricultural application may be suspended to await development of mineral. Ewing v. Hartman, 1 C. L. O. 180.

10. Ex parte affidavits with no opportunity for cross-examination should not be enter

tained in mining contests. France v. Harrison, 5 C. L. O. 66.

19. Hearings to determine the character of land. Circular of July 2, 1894, amending paragraphs 109 and 110 relative thereto, 19 L. D. 5.

20. Though the mineral character of a tract is admitted by the railroad company in a judicial proceeding instituted for the possession thereof by the company, yet the Department, in the administration of the law, is required to determine the actual character of the land in question. Where land in the vicinity of valuable mineral deposits is returned as mineral in character on the township plat, clear and positive proof of its nonmineral character can alone overcome the

12. Hearings to determine the character of lands returned as saline are provided for by the act of January 12, 1877 (19 Stat. 221). Circular of April 10, 1877, 4 C. L. O. 21.

13. Where a special agent reports land covered by a placer entry not to be placer ground, a hearing should be ordered to determine its true character. A. D. Searl Placer, 9 C. L. O. 180.

14. The character of land is a question of fact to be determined by investigation. (Salines.) Henry C. Horton, 9 C. L. O. 121.

15. Where land is returned as mineral in character, final entry therefor under laws not requiring publication of notice should not be allowed until notice has been given by publication and posting in the land office. Circular of Sept. 23, 1880, 9 C. L. O. 147; Ewing v. Hartman, 1 C. L. O. 180; Paragraphs 109 et seq., Mining Regulations.

16. In a hearing to determine the character of the land, any person who has knowledge thereof is permitted to testify, regardless of any interest he may have in the matter. William B. Knott, 2 C. L. O. 146.

17. In case of a hearing ordered under the General Mining Circular, the Rules of Practice with respect to appeal must be followed to prevent the decision of the local office as to the character of the land from becoming final. Stein v. Fisher, 5 L. D. 671.

Secretary, April 17, 1880.

21. A judgment on an adverse suit is not conclusive upon the United States as to the character of the land involved or as to the parties' compliance with law. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641.

22. The judgment of a court to the effect that lands are mineral does not bind the Land Department, whose duty it is to determine for itself the character of the land to be disposed of. Barden v. N. P. R. R. Co., 19 L. D. 188.

23. The judgment of a State court in a proceeding under a State law, to the effect that land is non-mineral in character, does not bind the Land Department. Overman Silver M. Co. v. Maxwell, 10 C. L. O. 191.

24. The judgment of a State court on an adverse suit between a lode claimant and a

placer claimant, each claiming a deposit of limestone, to the effect that neither party is entitled to the land because limestone is not a mineral, is not binding on the Department, and it will follow the judgment of the lower court even though it has been reversed. Com'r to Seattle Office, Aug. 28, 1893, In re Orcas Island Lime Mine; S. C. as Wheeler v. Smith, 5 Wash. St. 784; 32 Pac. Rep. 784.

25. It is within the discretion of the Commissioner of the General Land Office to order a hearing to ascertain the character of the land, and whether the conditions of the law have bee complied with, though the applicant for patent may have obtained a favor

ered by a final homestead entry, it is awarded to the agricultural claimant. Small v. Howell, 9 C. L. O. 164.

adverse claimant. Alice Placer, 4 L. D. 314.

26. A decision by the Land Department as to the character of land is not conclusive as

its mineral character to show it as a present fact. Kane v. Devine, 7 L. D. 532.

35. Where the land covered by a mining claim is adjudged mineral, a new hearing to determine the character of the land will not be ordered unless such claim be alleged to have been abandoned. McCharles v. Roberts, 20 L. D. 564.

33. In all controversies affecting the char

29. The failure of one mineral contest against an agricultural entry embracing land returned as mineral, and the presentation of satisfactory final proof by the agricultural occupant, will not prevent parties who were not interested in such contest, and who claim to have discovered valuable mineral on the land subsequent to such proceedings, from instituting another contest prior to issuance of patent. Werle v. Murphy, 15 C. L. O. 183. 30. The character of the land can be inquired into at any time prior to the issuance of patent. A prior decision by the Land Department that the land in dispute is mineral land will not prevent another hearing and an opposite decision. Searle Placer, 11 L. D. 441. 31. Where land has been adjudged mineral, an agricultural claimant who shows that mining operations thereon have been abandoned as unprofitable, in the absence of any other showing of the mineral character, is entitled to a decision holding it to be nonmineral. Thomas v. Thomasson, 16 L D. 52. 32. The burden of proof is upon one attacking a judgment of the Department as to the character of land, and the showing must be strong to induce the Department to order a new hearing in such a case. McCharles v. Roberts, 20 L D. 564.

33. Where, on testimony submitted at a hearing, it is finally decided that land is non-mineral in character, a hearing will not be ordered on the protest of another claim- | ant who set up nothing not considered in the first contest. Departmental decision of June 18, 1896, In re Spitzler v. Koch.

34. Where land returned as mineral is decided, upon a hearing had, to be non-mineral,

37. In a controversy to determine the character of the land the government is a party in interest. Caledonia M. Co. v. Rowen, 2 L. D. 719; Magalia G. M. Co. v. Ferguson, 3 L. D. 234.

2. Return.

38. The return by the United States Surveyor General as to the character of the land is of but slight value and should not be given undue weight. Winscott v. N. P. R. R. Co., 17 L. D. 274.

39. Where land returned as agricultural in character has been embraced in a prima facie valid mineral application, the slight presumption raised by the return of the United States Surveyor General is overcome and the burden of proof is on one alleging its agricultural character. N. P. R. R. Co. v. Marshall, 17 L. D. 545.

40. The return of the United States Surveyor General is not conclusive as to the mineral character of land. Gold Hill Qtz. M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635.

41. The return of lands as saline is not conclusive of their character, and if disproven they are subject to agricultural entry. Cole v. Markley, 2 L. D. 847.

42. A return by the United States Deputy Surveyor as to the character of land, whether mineral or non-mineral, has the weight and effect only of a deposition. Kirby v. Lewis, 39 Fed. Rep. 75; Winscott v. N. P. R. R. Co., 17 L. D. 274.

43. The return of land as mineral by the United States Deputy Surveyor, and the approval of the survey by the United States Surveyor General and by the General Land

44. The report of the surveyor as to the character of the land is sufficient in the absence of anything bringing in question the bona fides of the claimant, or tending to show that the ground added by the amendment is valuable, or is sought for any other than mining purposes. Lincoln Placer, 7 L. D. 81.

45. The non-mineral character of land must be shown after it has been returned as mineral, before an agricultural entry is allowed therefor. McGurk v. Waters, 10 C. L. O. 87.

46. Clear and positive proof alone can overcome the mineral return of land near

valuable mines. Town Site of North Lead

ville v. Searl, 7 C. L. O. 36.

47. The presumption raised by the mineral return of public lands will remain until disproven by testimony. Central Pacific R. R. Co., 13 C. L. O. 218.

3. Burden of Proof.

(See EVIDENCE, p. 401.)

48. The burden of proof is on one attacking the return of lands by the United States Surveyor General Nita v. State of Wisconsin, 9 L. D. 385.

49. The burden of proof is upon one attacking the prima facie agricultural character of the land. Savage v. Boynton, 12 L. D. 612.

50. The burden of proof is upon an agricultural claimant for land returned as mineral, but the presumption as to the character of the land is not forcible where it appears that, after long-continued mining operations over a considerable part of the land, it has been abandoned by mineral claimants as no longer profitable. Cutting v. Reininghaus, 7 L. D. 265.

51. The burden of proof in this case rests on the agricultural claimant, but he may show that he has improved the tracts and used them for agricultural purposes, and that "there have been no valuable mines of gold, silver, cinnabar or copper discovered thereon." Utter v. Boston Hydr. G. M. Co., 14 C. L. O. 257.

52. Where land is returned as mineral the burden is upon an agricultural claimant to show that it is non-mineral, but he is nct

ure. Mulligan v. Hansen, 10 L. D. 311.

53. The allowance of a mineral entry on land returned by the United States Surveyor General as agricultural overcomes the presumption raised by such return, and the burden of proof is thereafter upon one alleging the non-mineral character of the land. Walton v. Batten, 14 L. D. 54.

54. Where land is returned as mineral in character by the United States Surveyor General, and is entered by a homestead claimant who files his non-mineral affidavit, an affidavit of a mineral claimant alleging its mineral character will offset the agricultural claimant's non-mineral affidavit, and place the burden of proving the non-mineral character upon him. Dickinson v. Capen, 14 L. D. 426.

55. Where land returned as agricultural in character has been embraced in a prima facie valid mineral application, the slight presumption raised by the return of the United States Surveyor General is overcome, and the burden of proof is on one alleging its agricultural character. N. P. R. R. Co. v. Marshall, 17 L. D. 545.

56. The report of a United States Deputy Mineral Surveyor who examines a placer mining claim in his official capacity, which shows the land to be mineral in character, overcomes the slight presumption raised by its return by the United States Surveyor General as agricultural in character, and places the burden of proof upon one alleging its nonmineral character. State of Washington v. McBride, 18 L. D. 199.

57. Land was returned as non-mineral in character and was entered by cash entry as such. Subsequently the surveys of the township were suspended. A hearing was ordered on a contest by a mineral contestant to determine the character of the land at the date of the cash entry. Before trial a new public survey was approved, returning the land as mineral in character. Held, that the burden of proof was upon the agricultural claimant to show the land not to have been known to be mineral at date of his entry. Aspen Cons. M. Co. v. Williams, 23 L. D. 34. (Following Johns v. Marsh, 15 L. D. 196, as to actual mining operations not being necessary.)

58. When land has been returned as agricultural in character on the township plats,

59. Where land is returned as agricultural in character, and is so claimed, the burden of proof is upon one alleging its mineral character. Hooper v. Ferguson, 2 L. D. 712; Caledonia M. Co. v. Rowen, 2 L. D. 714; Dughi v. Harkins, 2 L. D. 721.

60. As the land in question was returned as agricultural, and has never been withdrawn as mineral land, the burden of proof is upon the placer claimant to prove its mineral character. Hunt v. Bartholomew, 10 C. L. O. 293.

61. The burden of proof, where land is returned as agricultural, is upon the mineral claimant, and he must show, not that the land in the neighborhood is mineral, and that theoretically the land in dispute must contain mineral, but that it actually does produce mineral. Dughi v. Harkins, 2 L. D. 721. 62. After lands had been set apart and designated as agricultural land, they were prima facie of that character, and the burden of proof is upon him who traverses such character. Caledonia M. Co. v. Rowen, 2 L. D.

714.

63. Where land is returned as agricultural, and is claimed as such, the burden is upon a mineral contestant to show its mineral character. Roberts v. Jepson, 4 L. D. 60.

64. Where land is within a well-known mineral locality, the presumption before its survey is that it is mineral in character. Town Site of Deadwood, 8 C. L. O. 18.

65. Where the land was returned as agricultural in character, and is claimed as such, the question "is not whether the land is mineral in character, but whether the mineral character is such as to make the land more valuable for mining than for agricultural purposes or whether the mineral character is shown to be such as to warrant the conclusion that the minerals might be obtained with the aid of known means and appliances in sufficient quantities and of such values as to make it more valuable for mining than for agricultural purposes." Creswell M. Co. v. Johnson, 8 L. D. 440.

66. The burden of proving the land more valuable for mining than for agricultural purposes, as a fact, is upon one attacking an

67. Where land has been returned by the United States Surveyor General as agricultural in character, and it is claimed as such, the burden is on a mineral claimant to show, as a present fact, that the land is more valuable for mining than for agricultural purposes. Dobler v. N. P. R. R. Co., 17 L. D. 103.

68. Where land is returned as agricultural, and is claimed as such, the burden is upon one alleging its mineral character to prove, not that some mineral has been found thereon, but that it can be mined at a profit. Departmental decision of May 14, 1896, In re Quigley v. State of California.

4. Proof.

(See EVIDENCE, p. 401.)

69. Where land was returned as agricultural in character, the burden is upon one alleging its mineral character to show, "not that neighboring or adjoining lands are mineral in character or that that in dispute may hereafter by possibility develop minerals in such quantity as will establish its mineral rather than its agricultural character, but that as a present fact, it is mineral in character, and this must appear from the actual production of mineral, and not from any theory that it may produce it. * * * He must show affirmatively, in order to establish his claim, that the mineral value of the land is greater than its agricultural value." Dughi v. Harkins, 2 L. D. 721.

70. In contests between agricultural and mineral claimants, the mineral claimant must show that valuable mines have been discovered. Carron v. Curtis, 5 C. L. O. 3.

71. The actual finding of mineral on the land must be shown before its mineral character will be recognized. Commissioners of Kings County v. Alexander, 5 L. D. 126.

72. Where land returned as non-mineral is claimed under the agricultural law, the burden is upon one alleging its mineral character to show that it is mineral in character as a present fact, not that adjoining tracts are such. Magalia Gold M. Co. v. Ferguson, 6 L. D. 218.

73. In a hearing to determine the character of land, the mineral claimant need not show