been recognized, yet in such cases the circumstances have been peculiar, and they may be regarded as having been decided upon their own peculiar surroundings, rather than as enunciating any controlling principle of the law; and in such cases the holding and quasi right of possession is limited to the ground actually held by a possessio pedis.1 If title is asserted under the name of a mining claim, compliance with the law must be shown, and a locator who first complies with the prerequisites of the law will have the better title. In this connection it may be said to be axiomatic that possession of any kind, unless in good faith and with the intention of complying with some of the statutes of the United States, and thus acquiring title to the land, and that, too, within the time allowed by the controlling statutes or rules, will not exclude a bona fide locator who enters peaceably for that purpose. The matter in hand was splendidly illustrated by Lewis, Chief Justice, in an early case in Nevada. He said: "When, therefore, courts presume title in the first proprietor, it can only be a title subject to the conditions imposed by the mining laws and customs under and by virtue of which it was acquired; and in the absence of mining laws, and where the miner's right rests solely upon his possession, . the miner then locating a claim would hold only by actual occupancy, and by such work for the development of the claim as would, under all the circumstances, be deemed reasonable. And his right of possession would only be continued by occupancy and use." Of course the foregoing observations apply strictly 3 Fitzgerald v. Upton, 5 Cal. 308; 2 Erhardt v. Boaro, 113 U. S. 536; Becker v. Pugh, 9 Colo. 591; Belk v. Meagher, 104 U. S. 284; Sweet v. Webber, 7 Colo. 450; Zollars & Highland Chief Con. M. Co. v. Evans, 2 McCrary, 39, 4 M. R. 407; Crossman v. Pendery, 8 Fed. Rep. 693; Armstrong v. Lower, 6 Colo. 393; Faxon v. Barnard, 4 Fed. Rep. 702. 3 Crossman v. Pendery, supra; Garthe v. Hart, ante, p. 128, n. 4; Atwood v. Fricott, 17 Cal. 37; Belk v. Meagher, supra. 4 Mallett v. Uncle Sam M. Co., 1 Nev. 188. to mineral lands, and in any case of a conflicting possession or claim between an agricultural claimant and mineral claimant the question would be whether the land was more valuable for mineral than for agricultural purposes.1 § 156. Same subject - Reservation by a previous location - Overlapping locations valid.-As to locations of mining claims, the rule that we have adverted to repeatedly and shall be compelled to notice again-first in time stronger in right — applies with full force. Applying this principle to the matter in hand, it must be quite apparent that where the land, even though otherwise public mineral land, is covered by a valid subsisting location, it is not open to exploration and purchase, and therefore no valid discovery or location can be made upon it; a fortiori that the settled rule is that a location to be good must be good when made. It is not to be disputed that overlapping locations are made, and may be lawfully made, (a) in order to extend the end of the claim over the overlapped claim, and (b) in order to lay the bounda ries of the claim in such a way as that extra-lateral rights can be asserted and the entire unclaimed surface be thus taken; for it must be remembered that the locator gets not only the vein located, but likewise all other veins, the top or apices of which lie within his surface boundaries extended vertically. Of course, in such case the overlapping portion of the claim is invalid as to the conflict with the pre-existing claim; but if the discovery is made upon unclaimed ground, as hereinafter pointed out, the claim is valid and lawful for 1 Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233; United States v. Copper Queen Con. Co. (Ariz.), 60 Pac. Rep. 885; Northern Pac. R. Co. v. Soderberg, 99 Fed. Rep. 506; Johnston v. Cromp ton, 68 L. J. Ch. 559. 2 Omar v. Soper, 11 Colo. 389, 18 Pac. Rep. 443; Lebanon M. Co. v. Cons. Rep. M. Co., 6 Colo. 371; Belk v. Meagher, 104 U. S. 279; Oscamp 3 Del Monte M. & M. Co. v. Last Post, §§ 351, 355, 359. all the unappropriated ground sought to be taken. No invasion of the surface rights of the other are permitted to be made, nor is a proceeding of this kind to be classed as such. The locator is simply taking that to which no other claim has previously been made, and this he may lawfully do, but beyond this he cannot go. Return $157. Character of land- How determined of surveyor.-The character of the land is ascertained in the first instance by the return of the surveyor in extending the survey of the public lands within the district; and while the rulings of the department to which this matter is confided for adjudication are by no means harmonious on this point, the better line of reasoning, as well as what would seem to be the true rule in such cases, is to the effect that, generally, the return of the surveyor-general, made upon the return of the surveyor to him, prima facie determines the character of the land as being mineral or nonmineral; and in case of dispute between agricultural claimant and mineral claimant as to the character of the land, since its status is prima facie settled, the burden of proof is upon the party assailing such return to show that it is incorrect or false;3 and in such case, it would seem that the decisions of state courts, while they may be persuasive, are not controlling upon the department; and the practice has been to open the matter for discussion, and to grant rehearings upon the question where the facts were brought into 1 Del Monte M. & M. Co. v. Last Chance M. & M. Co., ante, p. 130, n. 3. See pages 82, 83. 2 Winscott v. Northern Pac. R. Co., 17 L. D. 274; Caledonia M. Co. v. Rowen, 2 L. D. 715-717; Dughi v. Harkins, id. 721; Hooper v. Ferguson, id. 712; Cresswell v. Johnson, 8 L. D. 440; Winters v. Bliss, 14 L. D. 59: Roberts v. Jepson, 4 L, D. 60; Dobler v. N. P. Ry. Co., 17 L. D. 103; Townsite of Deadwood, 8 C. L. O. 18. 3 Caledonia M. Co. v. Rowen, supra; Winters v. Bliss, supra; Aspen M. Co. v. Williams, 23 L. D. 34; Johns v. Marsh, 15 L. D. 196; Northern Pac. Ry. Co. v. Marshall, 17 L. D. 545. 4 Overman S. M. Co. v. Maxwell, 10 C, L. O. 191; Barden v. N. P. R'y Co., 19 L. D. 188; In re Orcas Island Lime Mine, Clark et al. Digest, 339. dispute. The courts have said, in consonance with the rulings of the department, that the return of the surveyor has the weight and character of a deposition as to the character of the land,2 but is prima facie merely of its character,3 and not conclusive.1 § 158. Conclusiveness of department decisions upon itself and upon the court.-One cannot read the decisions of the department without being impressed with the fact that those who make the decisions are no great sticklers for the rule stare decisis. For instance, it is said, without much show of reason it must be admitted, that a final decision of the department as to the character of land is only conclusive up to the time covered by the hearing. It must be assumed at least, although the decision does not say so, that this rule applies only to parties who have had no hearing upon the question. As to parties whose rights were adjusted by the decision, we think the rule would be indisputable that it would be res judicata as to them. From considerations of public policy, and inasmuch as congress has confided to the land department the adjudication of the character of public lands, and where and under what circumstances they may be disposed of under the law, the uniform policy has grown up and become established that the courts will not interfere with their jurisdiction. Discussing this rule, the supreme court of the United States, following a long line of decisions, thus declares the law: "Whenever, therefore, mines are found in lands belonging to the United 1 Magalia Gold M. Co. v. Ferguson, 3 L. D. 234. Inquiry as to the character of the land may be made and protests filed for this purpose at any time before issuance of patent. Cosmos Exp. Co. v. Gray Eagle Oil Co., 104 Fed. Rep. 20-43; Olive Land & D. Co. v. Olmstead, 103 Fed. Rep. 568; Hawley v. Diller, 178 U. S. 476; Michigan, etc. Lumber Co. v. Rust, 168 U. S. 589, 42 L. ed. 591; Knight v. United Land Ass'n, 142 U. S. 161, 35 L. ed. 974. 2 Kirby v. Lewis, 39 Fed. Rep. 75. 3 Johnson v. Morris, 72 Fed. Rep. 890. 4 Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104. 5 Dargin v. Koch, 20 L. D.384. See also Stinchfield v. Pierce, 19 L. D. 12. States, whether within or without townsites, they may be claimed and worked, provided existing rights of others from prior occupation are not interfered with. Whether there are rights thus interfered with, which should preclude the location of the miner, and the issue of a patent to him or his successor in interest, is, when not subjected under the law of congress to the local tribunals, a matter properly cognizable by the land department when application is made to it for a patent; and the inquiry thus presented must necessarily involve a consideration of the character of the land to which title is sought, whether it be mineral, for which a patent may issue, or agricultural, for which a patent should be withheld, and also the citizenship of the applicant." 99 1 159. More valuable for mineral than agricultureDistinction. Enough has already appeared to indicate that the decisions of both the department and the courts in fixing the character of the land as mineral or non-mineral apply this rule as the test: whether the land is more valuable for the one purpose than the other, and holding it to be mineral or non-mineral according to the preponderance of the evidence upon this point; and this, we apprehend, is after all the true rule. By one case it has been held that land upon which was a dump of tailings was mineral land. Likewise, under a California statute authorizing a corporation to sell its mining ground, it was held that where 1 Steel v. St. Louis S. & R. Co. 106 U. S. 447. See also Barden v. Northern Pacific Ry. Co., 154 U. S. 327; Johnson v. Towsley, 13 Wall. 83; United States v. Throckmorton, 98 U. S. 61; French v. Fyan, 93 U. S. 172; Shepley v. Cowen, 91 U. S. 330; Quinby v. Conlan, 104 U. S. 426; St. Louis S. & R. Co. v. Kemp, id. 641; Vance v. Burbank, 101 U. S. 514; Northern Pac. Ry. Co. v. Cannon, 54 Fed. Rep. 252,4 C. C. A. 303; Hooper v. Fergu son, 2 L. D. 712; Ferry v. Street, 4 Utah, 521; Cosmos Exp. Co. v. Gray Eagle Oil Co., 104 Fed. Rep. 20 and cases at p. 44. 2 McLaughlin v. Powell, 50 Cal. 64: Alford v. Barnum, 45 Cal. 482; Merrill v. Dixon, 15 Nev. 401; Francour v. Newhouse, 40 Fed. Rep. 618, 43 Fed. Rep. 238; Iron Silver M. Co. v. Mike & Starr M. Co., 143 U. S. 394. 3 Rogers v. Cooney, 7 Nev. 213. |