operation of the mining laws of the United States. The first provision of the statute is the older one, whereby all lands valuable for minerals are reserved from sale, except as otherwise provided by law; and the other provisions of the mining law2 are provisions meeting this exception. At the threshold of this exception congress provided that all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are open to exploration and purchase, and the lands in which they are found to occupation and purchase in the manner therein provided.3

§ 152. Historical observations—Territory of the United States, how and when acquired - What classed as mineral land. Within the first thirteen states, of course, and within any state carved out of territory belonging to any one or more of them, it is common knowledge and history that the general government never owned any land except that ceded to it for arsenals, dockyards, or some special purposes, which did not transform any of it into public land of the United States. Likewise, within the state of Texas, which came into the Union on her own application, owning and reserving to herself all her public state lands, the United States owns no public lands, and therefore the federal laws do not apply there.

The public mineral lands, therefore, are included solely within the five acquisitions of territory made by the United States, namely:

(a) The Louisiana purchase in 1803, by which a portion of the states of Alabama and Mississippi, all of the states of Louisiana, Missouri, Arkansas, Iowa and Nebraska, nearly all of Kansas, all of Colorado east of the Rocky Mountains and north of the Arkansas river, all of Oregon, Washington, Idaho, Montana, North and South Dakota and Wyoming, were acquired;

1 Act of July 4, 1866, § 5 (14 Stat. at L., p. 86); R. S. U. S., § 2318.

2 Act of May 10, 1872 (17 Stat. at L., p. 91); R. S. U. S., § 2319 et seq. 3 Ibid.

(b) That acquired by the treaty with Spain, dated February 22, 1819, by which Florida and a portion of Alabama and Mississippi, known as East and West Florida, and described as all of the Spanish possessions east of the Mississippi river; (c) That acquired by the treaty of Guadalupe-Hidalgo of date February 2, 1848, by which portions of New Mexico and Arizona, all of California, Nevada, Utah, and a portion of Colorado, were ceded to the United States;

(d) That acquired by the Gadsden purchase, December 30, 1853, and comprising about forty-five thousand square miles, and now composing portions of the territories of New Mexico and Arizona;

(e) The district of Alaska, acquired by purchase and treaty from Russia, March 30, 1867, and ratified by the senate June 20, 1867.

§ 153. States excepted from the operation of mineral lands acts.-There are many of the states which are nominally public-land states, but in which the lands are not open to location as mineral land because they have been reserved, either by general policy of reservation expressed and recognized throughout, or by special statutes, in which by name congress has declared that the public lands are to be acquired only as agricultural lands whatever their character. Thus, by an act approved June 21, 1866,1 congress expressly excepted mineral lands from the operation of general land laws applicable to the states of Alabama, Arkansas, Florida, Louisiana and Mississippi, and when the revision of the statutes of the United States was made in 1875 it was expressly provided that the public lands in the above states could be acquired only by homesteaders.2

We have already seen in the earlier sections of this work that the policy of reservation was spread over that portion of the public lands embraced in what was known and called the

1Act for the disposal of public lands, etc., approved June 21, 1866

(14 Stat. at L., p. 666). R. S. U. S., § 2303.

2R. S. U. S., § 2303.

Indian or Northwestern Territory, and which included the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa and Nebraska, and possibly Missouri; but precious metals were not found in any of those states in any appreciable quantities, and to fully accomplish the reservation of mineral lands from acquisition in any other manner than as agricultural lands within the states of Michigan, Wisconsin and Minnesota, congress, in 1873, made express provision excepting those states from the operation of the mineral laws. Later, by express enactment, the states of Missouri and Kansas were excepted from the operation of the mining laws. By express provision, too, congress has declared that whatever the character of the land in the state of Alabama, the title should be acquired and the lands should be entered only as agricultural lands.3

Express provisions do not seem to have been made with reference to the states of Iowa and Nebraska other than the statutes earlier than the mineral laws, except those early reservations which marked the policy of the government prior thereto, and which have been already adverted to. As early as 1875, however, the supreme court of the United States, in an action brought to determine the validity of a title based upon a soldier's bounty land warrant, located upon land in the possession of the state under claim of title, the location having been made of said scrip in 1859, after reviewing the policy of the government to reserve salt licks and mineral lands as expressed in all the acts of congress, denied the right of the applicant to patent such lands with said scrip. True, the law of 1872 was not involved, but it is believed that the enabling acts of both Iowa and Nebraska, in addition to the policy of reservation theretofore expressed with reference to them, show the intention of congress to exclude them from the operation of the mineral

1 Act of Feb. 18, 1873 (17 Stat. at

L. 465), R. S. U. S., § 2345.

2 Act of May 5, 1876 (19 Stat. at L, p. 52), 1 Supp. R. S. U. S., p. 104.

3 Act of March 3, 1883 (22 Stat. at L 487), 1 Supp., p. 404.

Morton v. Nebraska, 88 U. S. 660.

land laws. Oklahoma has been excepted by express enact ment.1

All other public lands, therefore, are by the terms of the statute open to exploration, and the mineral lands within them to occupation and purchase as such, and this includes the states of California, Oregon, Washington, Idaho, Montana, North and South Dakota, Colorado, Wyoming, Utah and Nevada, the territories of Arizona and New Mexico, and the district of Alaska, the latter by express provision of statute.2

§ 154. Only unoccupied, unclaimed public mineral lands locatable as a mining claim - Occupied land or Indian reservations not open.- Having ascertained in a general way what constitutes minerals within the purview of the law, and having reviewed and enumerated the states which come within the definition of public mineral-land states and territories, it becomes necessary at this time to somewhat enlarge upon the proposition in the concrete; namely, what is meant by public mineral lands of the United States, and what lands are locatable as such? It may be stated as a settled proposition that only unoccupied and unappropriated mineral lands of the United States are open to exploration and location under the laws; but ground does not cease to be unoccupied, within the meaning of the laws of congress, where possession is simply taken by a person who does not proceed to comply with the requirements of the laws relating to the location of a mining claim.* Whence it follows that the converse of this proposition must be equally true, and consequently lands upon which there is

1 Act of March 3, 1891 (26 Stat. at L 1026), 1 Supp. R. S. U. S. 928, 929. 2 Act of May 17, 1884 (23 Stat. at L., p. 24), 1 Supp. R. S. U. S. 430

433.

3

393.

ris v. Equator M. & S. Co., 8 Fed. Rep. 865; Chapman v. Toy Long, 4 Sawy. 28; McKinstry v. Clark, 4 Mont. 370, 1 Pac. Rep. 759; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. Rep. Armstrong v. Lower, 6 Colo. 280; Garfield M. & M. Co. v. Ham

'Belk v. Meagher, 104 U. S. 284; Sparks v. Pierce, 115 U. S. 408; Har

mer, 6 Mont. 53, 8 Pac. Rep. 153; McCornick v. Varnes, 2 Utah, 55; S. C., 101 U. S. 288.

a subsisting Indian reservation, or which have been otherwise disposed of by the government, being occupied or dis posed of at least for the time being, are not open to location — that is to say, lands lawfully reserved; but this rule does not apply to a railroad grant of odd-numbered sections where minerals are reserved expressly from the grant that is to

say, and the rule is, as we shall see when we come to discuss the subject of reservations, that the reservation to be valid must be authorized by the law under which it is made, otherwise it does not exclude the mineral locator. 3

§ 155. What sort of occupancy will exclude the mineral locator - Distinctions-Mineral lands and land valuable for mineral.-In considering the question whether the land sought to be located as mineral land is vacant, unoccupied and unappropriated, it is necessary to take into consideration the nature and extent of its attempted or claimed occupancy. A mere squatter on the public domain, not claiming the land under any of the laws of the United States, would not be an occupant or appropriator in any sense of the term, so as to exclude such land from location and appropriation; but one in possession, of course, is presumed to be rightfully so until the contrary appears, which will be discussed in a later portion of this work." There is also a well recognized distinction between the acts essential to indicate possession and occupancy of agricultural lands and those necessary in case of mining lands; mining lands must be occupied and claimed as such or not at all. Although in some cases possession by occupancy alone has 1 See post, Part IV.

Rep. 93; Patchen v. Keely, 19 Nev.

2 Barden v. Northern Pacific R. 404, 14 Pac. Rep. 347; Funk v. SterCo., 154 U. S. 288. rett, 59 Cal. 614.

8 United States v. San Pedro & Cañon Del Agua Co., 17 Pac. Rep. 337. See post, Part IV, ch. II

4 Doran v. Central Pac. R. Co., 24 Cal. 245, 256; Belk v. Meagher, 3 Mont. 65, 1 M. R. 522; Horswell v. Ruiz, 67 Cal. 111, 7 Pac. Rep. 197; Garthe v. Hart, 73 Cal. 541, 15 Pac.

5 Post, Part IV, ch. IX; Ricard v. Williams, 7 Wheat. 107; Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 381; Patchen v. Keely, supra.

6 English v. Johnson, 17 Cal. 115; Hess v. Winder, 30 Cal. 349; Duprat v. James, 65 Cal. 555, 4 Pac. Rep. 562; Eilers v. Boatman, 3 Utah, 159;