the corporation deposited "lustral" or "paint stone" on certain of its land for the purpose of pulverizing the same by means of machinery, such land was mining land within the meaning of that statute.' These decisions, we believe, are extreme, and the true rule ought to be, that mineral land is that only which contains mineral in its natural state. § 160. Summary. To summarize: the land open to location as a quartz mine must be property belonging to the public domain of the United States, and not within one of the reservations for Indian lands or other lawful purposes, and not within the states of Michigan, Wisconsin, Minnesota, Iowa, Indiana, Missouri, Arkansas, Texas, Mississippi, Tennessee, Florida or Louisiana, as these states have been, by various acts of congress, or in other lawful manner, withheld from the operation of this statute. Of course, the United States owns no public domain within any of the original thirteen states, or any states carved out of their territory. The right to mine can be authorized by state or federal authority only in public lands. Where the lands have become the property of an individual, the right of the government over them is gone. When a location has been made the ground covered thereby is not public mineral land, and no one can make another location thereon as long as the first location is subsisting-not even the first locator. 1 Johnson v. Lustral Co., 127 Cal. 283. 2 Armstrong v. Lower, 6 Colo. 393. 3 Golden Terra M. Co. v. Mahler, 4 M. R. 390. 回 CHAPTER III. STATE MINERAL LANDS, AND HOW DISPOSED OF. § 162. State lands within the public-land states. 163. State legislation authorizing locations on selected lands. 165. Generally mentioned in the deed. § 162. State lands within the public-land states.Enough is shown by the foregoing sections to indicate that, as a general rule, the mineral lands have been excepted from the operation of grants to the states by the general government. This will be further elaborated later on in another part of this work.' Whence it follows as a matter of course that neither of those states has any public mineral land to dispose of; and it would also seem to follow that since the minerals are reserved from those grants, any attempt on the part of the state to convey away the minerals, either as such or where the land is known to contain minerals, would be wholly ineffectual. § 163. State legislation authorizing locations on selected lands.-There has been some state legislation disclaiming on behalf of the state, and purporting to reconvey to the United States, without any action on its part, any lands selected by the state, and found after approval of the selection, which amounts virtually to a patent, to be more valuable for mineral than for any other purpose. These statutes further authorize location, working under local rules, and in some cases obtaining patent from the United States of mining claims therein, despite the selection by the state. The exact status of such locations and the effect of such legislation is somewhat difficult to determine. That 1 Post, §§ 163, 228. 2 2 See Appendix B, §§ 33, 34. the state cannot bestow, and the United States, in the absence of congressional legislation authorizing it, cannot receive land in this way, is unquestionable. The Nevada statute, in some respects, is less ambiguous and more capable of enforcement in terms than is the California statute. The former seems to accomplish a severance of the minerals from the other estate, and to authorize the exercise of eminent domain as to any improvements (possibly title as well) held under the state patent.1 Since the records of the general land office will show that the United States does not own these lands and therefore cannot patent them, or any part of them, to any mineral claimant, it is possible that the apparent intention of the legislature to permit locations of mining claims upon these lands and the acquisition of and ultimate title to them, including all mining rights, the same as if not patented to the United States, will be carried out by the court in some substituted form similar to the doctrine of cy pres at the common law. Pursuant to this the mineral claimant will be considered to have a title the equivalent in dignity of a patent from the United States, after he has performed the requisite amount of labor or improvements. § 164. State lands within the first thirteen states.Within the first thirteen states, of course, and within any territory carved out of them, a different rule applies than in any other state of the Union. Especially is this so with reference to lands within the states containing minerals and which are affected in any way by colonial grants. We have already mentioned some of the states which are thus affected.2 These grants and the limitations contained therein establish, as a general rule, covenants running with the land. The states, of course, have no uniform system of statutes or mode of disposition of their land, and the enumeration of their statutes would serve no useful purpose It is sufficient to say, as a general proposition, that state 1 Stanley v. Mineral Union, 63 Pac. Rep. 59. 2 See ante, § 13. lands, the same as lands belonging to the United States, can only be disposed of in the manner authorized by the statutes of the state.1 Whatever § 165. Generally mentioned in the deed. litigation has sprung out of state grants in the various states has generally come through the necessity of construing a grant or reservation in a deed. All such matters will be considered in another part of this work. In some of the public-land states, notably Oregon and Utah, there was no expressed provision reserving the mineral lands in the state grants by the enabling act; that was done by subsequent legislation. In the states of California and Nevada, however, a policy has grown up and become well recognized to the effect that mineral lands are reserved.3 In the state of Texas, which is controlled entirely by state laws, a different rule obtains than in any of the other states. It is unhampered by the system of colonial grants, or any others except, possibly, occasional Mexican grants. It has a more or less elaborate mining code of its own, providing for the disposition of mineral lands, the price for which is twenty-five dollars per acre. It provides for annual labor on unpatented land, and requires application for patent to be made within twenty-five years. Unlike the federal statute, no extra-lateral rights are allowed. Only metallic mineral lands are open to location in Texas, however, excluding 1 Moore v. Brown, 139 N. Y. 127, 34 N. E. Rep. 772; 3 Kent's Com. 378. 2 Post, Part XIII. Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167; Hermosillo v. Hubbell, 89 Cal. 8, 26 Pac. Rep. 611; Heydenfeldt v. Daney G. & S. M. Co., 10 Nev. 290; Com'r Burdett to Reg. and Rec. Shasta, Cal.. Nov. 3, 1874; Keystone Cons.. M. Co. v. California, Copp's Min. Lands (2d ed.), 101; Williamson to Denver Office, March 30, 1877, Copp's Min. Lands (2d ed.), 341; Keystone Lode v. State of Nevada, 15 L. D. 259; State of Cal. v. Poley, 4 C. L. O. 18; In re Norager, 10 id. 54. See Roberts v. Cooper, 61 U. S. 467, per Daniel, Justice; R. S. U. S., § 2318. 4 General Laws of Texas, 1895; Sess. Laws 1895, ch. 127, pp. 197 et seq. expressly all forms of non-metallic minerals, stone and precious stones.1 Gas and oil are mentioned in this statute, and likewise expressly excluded from its operation; and it is probable that the courts of that state will be compelled to rule that the title to all such minerals must be acquired under some statute other than the foregoing. 1 See Texas Laws in Appendix, § 4 |