TITLE III. LANDS SUBJECT TO APPROPRIATION UNDER THE MINING LAWS, AND THE PERSONS WHO MAY ACQUIRE RIGHTS THEREIN. CHAPTER L "MINERAL LANDS" AND KINDRED TERMS DEFINED. IL THE PUBLIC SURVEYS AND THE RETURN OF THE SURVEYOR-GENERAL. III STATUS OF LAND AS TO TITLE AND POSSESSION. IV. OF THE PERSONS WHO MAY ACQUIRE RIGHTS IN PUBLIC MINERAL LANDS. CHAPTER I. "MINERAL LANDS" AND KINDRED TERMS DEFINED. $85. Necessity for definition of § 92. Substances classified as min "mine" and "mineral." 894. "Mineral lands" as defined by the American tribunals. $88. English denotation-"Mine" 95. Interpretation of terms by and "mineral" in their 89. Enlarged meaning of "mine." the land department. 96. American rules of statutory interpretation. § 90. "Mineral" as defined by the 97. Substances held to be minEnglish and Scotch authori ties. eral by the land department. § 91. English rules of interpreta- § 98. Rules for determining mintion. eral character of land. 885. Necessity for definition of terms. It becomes necessary for us to determine precisely what character of lands fall within the purview of the mining laws, and to define, at least with reasonable certainty, what may be the subject of appropriation under them. To say that these laws apply to mineral lands only, and that mineral lands alone can be occupied and enjoyed under them, states the fact broadly. But what are mineral lands? What is the test of the character of a given tract, when its mineral quality is asserted by a claimant under the mining laws, and that assertion is denied by an agricultural claimant to the same tract? To enable us to intelligently answer these questions, we are called ་་ upon to consider the phrases employed in the various acts of congress, and sift them down to a generic or comprehensive term, from which we may proceed to evolve a definition as accurate as the nature of the subject will permit. 286. Terms of reservation employed in various acts. -As we have already observed,' in the earlier legislation of congress, establishing a system for the pre-emption and settlement of the public domain, as well as in most of the legislative grants to the states for universities and schools, for the construction of public buildings, and in aid of railroads and other works of internal improvement, mineral lands were uniformly reserved from the operation of the law, and were excepted from the grant. The terms employed in specifying what was reserved are not altogether uniform. A few examples will illustrate this. The pre-emption act of 1841 (section ten) provided that no lands on which are situated any known salines or mines should be liable to entry under and by virtue of the provisions of the act.2 The act of September 27, 1850, creating the office of surveyor-general of Oregon, and providing for surveys, and making donations to settlers, directs "that no min"eral lands, nor lands reserved for salines, shall be "liable to any claim under and by virtue of the pro"visions of this act." 1 See, ante, § 47. "Congress on March 3, 1891, by an act entitled 'An act to repeal "the timber culture laws and for other purposes' (26 Stats., p. 1095), "repealed the pre-emption law, and thereby also eliminated from the "homestead law the words 'known salines or mines,' which were in the "latter by adoption (Rev. Stats., § 2289). But congress left in force "the provisions of section 2302 of the Revised Statutes, by which it is "declared, among other things, that 'no mineral lands shall be liable to ❝entry and settlement under the provisions of the homestead laws.'"' (Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 40, 46.) The act of March 3, 1853, for the survey of public lands in California, the granting of pre-emption rights therein, and for other purposes, directs that none other than township lines shall be surveyed where the lands are mineral or are deemed unfit for cultivation, excluding in express terms "mineral lands" from the operation of the pre-emption act of 1841, and further interdicting any person from obtaining the benefit of the act by a settlement or location on "mineral lands."1 By the fourth section of the act of July 22, 1854, to establish the offices of surveyors-general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes, it is directed that none of the provisions of the act shall extend to "mineral lands," salines, etc. The act of July 4, 1866, giving authority for varying surveys from the rectangular system in Nevada, reserves from sale in all cases "lands valuable for mines "of gold, silver, quicksilver, or copper." The acts of July 1, 1862,2 and July 2, 1864,3 commonly known as the "Pacific railroad acts," reserve "mineral lands," excepting coal and iron, from the designation. Illustrations might be multiplied indefinitely, but the foregoing are sufficient for our present purpose. No legislative interpretation or definition of the term "mineral lands," which were so reserved and excepted, was ever attempted. This was left for judicial or departmental construction. As during the early periods of our legislative history the ownership of these reserved lands remained in the government, and were withheld from private ownership, conflicts of asserted title rarely, if ever, arose, and opportunity for judicial interpretation was not afforded. 13 Stats. at Large, p. 356. 'Public Domain, p. 311. |