66

"When the development, and its results, display such "promise that the prudent, reasonable man would be justified in expending money and labor in legitimate mining operations, untainted by an appearance of speculation, the land must be held mineral within the "meaning of that term as used in the granting act.

66

66

66

66

(Pacific railroad acts.) If it was held otherwise, the mining industry, so far as it pertained to odd sections "within the grant, would be paralyzed. The rule is "that paying mines are only shown to exist after years "of labor and much money expended in the develop"ment. Prospectors do not find riches on the surface. "Profit is not received from the grass-roots down. They "must have an opportunity given them to open the "mine as their means permit."1

"After careful consideration of the subject, it is my "opinion that where minerals have been found, and "the evidence is of such a character that a person of "ordinary prudence would be justified in the further "expenditure of his labor and means, with a reasonable "prospect of success, in developing a valuable mine, the requirements of the statute have been met. To hold "otherwise would tend to make of little avail, if not entirely nugatory, that provision of the law whereby "all valuable mineral deposits in lands belonging to "the United States . . . are . . . declared to be free "and open to exploration and purchase.' For if as "soon as minerals are shown to exist, and at any time "during exploration, before the returns become remu"nerative, the lands are to be subject to other disposi"tion, few would be willing to risk time and capital in "the attempt to bring to light and make available the "mineral wealth which lies concealed in the bowels of "the earth, as congress obviously must have intended "the explorers should have proper opportunity to do."2

"The invitation is to explore and purchase 'all valu"able mineral deposits' in the public lands and to

'Casey v. N. P. R. R., 15 L. D. 439.

* Castle v. Womble, 19 L. D. 455; Walker v. S. P. R. R. Co., 24 L. D. 172; Leach v. Potter, 24 L. D. 573; Magruder v. Oregon & Calif. R. R. Co., 28 L. D. 174; McQuiddy v. State of California, 29 L. D. 181.

66

occupy and purchase the lands in which they may be "found. Broader or more comprehensive language "could hardly have been used. Wherever mineral "deposits are found in the public lands, they are "declared to be free and open to exploration and purchase, with only one qualification--they must be val"uable mineral deposits."1

66

Mere indications of mineral do not prove that the lands contain permanent valuable deposits.2 Nor does the fact that a mining location has been made indicate that the land is valuable for mineral.3 A tract cannot be assumed to be mineral because it is situated in a mineral belt and is adjacent to numerous mining claims.1

In determining what constitutes mineral land within the meaning of the acts of congress, we have treated the subject generally, without regard to the form in which the mineral deposits occur-i. e. whether" in place," as in quartz veins, or not "in place," as in case of auriferous gravels, clays, and other substances usually encountered in horizontal beds or isolated deposits. What constitutes a vein or lode, or whether a given character of deposit may be located and acquired as "in place," or not " in place," will be discussed under appropriate heads in other portions of this work. The rulings cited and definitions quoted apply equally to all forms of deposits, with perhaps this suggestion: In lode locations non-mineral surface ground is embraced therein for the convenient working of the lode. But in places it is contemplated that the entire area should fall

Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233, 243. Tulare Oil and M. Co. v. Southern Pac. R. R. Co., 29 L. D. 269, 272. See, also, Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673.

3 Harkrader v. Goldstein, 31 L. D. 87; In re Bourquin, 27 L. D. 280. Elda Mining Company, 29 L. D. 279. See, also, Cleary v. Skiffich (Colo.), 65 Pac. 59.

within the designation of mineral-not necessarily homogeneous throughout, but all mineral.1

296. American rules of statutory interpretation.— In addition to the ordinary canons of statutory interpretation, there are certain recognized rules applicable to the acts of congress which are within the scope of this treatise. These may be briefly enumerated as follows:

(1) The mining laws are to be read in the light of matters of public history, relating to the mineral lands of the United States; 2

(2) Where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, that construction should be adopted which will support the claim of the government rather than that of the individual; 3

(3) In the case of a doubtful or ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect, and ought not to be overruled without cogent reasons.1

We might add a fourth rule, deducible from the foregoing and from the current of American authority and decisions of the land department, and that is, that the word "mineral,” as used in these various acts, should 'See Ferrell v. Hoge, 29 L. D. 12.

Jennison Exr. v. Kirk, 98 U. S. 453.

Slidell v. Grandjean, 111 U. S. 412, 4 Sup. Ct. Rep. 475; Leavenworth L. and G. R. Co. v. United States, 92 U. S. 733; Barden v. N. P. R. R. Co., 154 U. S. 228, 14 Sup. Ct. Rep. 1030.

• United States v. Moore, 95 U. S. 760; Brown v. United States, 113 U. S. 568, 5 Sup. Ct. Rep. 638; Barden v. N. P. R. R. Co., 154 U. S. 228, 14 Sup. Ct. Rep. 1030; Northern Pac. R. R. Co. v. Soderberg, 104 Fed. 425; Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Aldritt v. N. P. R. R. Co., Id. 349; Phifer v. Heaton, 27 L. D. 57; Hayden v. Jamison, 26 L. D. 373; Beaudette v. N. P. R. R. Co., 29 L. D. 327.

be understood in its widest signification.1 We do not conceive that there is anything in the context of the several acts, or in their nature, to restrict its meaning. This is practically the English rule announced by Mr. Ross Stewart, which has heretofore been referred to, and which is amply supported by the highest English authority.2

Judge Hanford, United States district judge for the district of Washington, thus clearly states the rule:"In its common and ordinary signification the word ""mineral' is not a synonym for 'metal,' but is a comprehensive term including every description of stone "and rock deposits, whether containing metallic sub"stances or entirely non-metalic."

5

This rule is in conflict with the decision of the supreme court of the state of Washington in the case of Wheeler v. Smith, wherein that court seeks to limit the meaning of the term "mineral," as used in the congressional mining laws, to metallic substances. In so doing the courts treats the rulings of the land department as possessing no force or virtue, and refuses to adopt the reasoning and conclusions reached in a parallel case by the supreme court of Montana, a court noted for its experience and ability in dealing specially with mining questions and controversies arising out of the mining laws. This decision of the supreme court of Washington also conflicts with a number of carefully considered cases, which will be noted when we come to enumerate the various substances which have been held to be within the reasonable definition of the term "mineral."

1 Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, 104 Fed. 425. See, ante, § 91.

Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, 507, S. C. on appeal, 104 Fed. 425.

+5 Wash. 704, 32 Pac. 784.

B Freezer v. Sweeney, 8 Mont. 508, 21 Pac. 20.

The Washington case is commented on in Pacific Coast Marble Co. Northern Pac. R. R. Co., 25 L. D. 233, 241.

97. Substances held to be mineral by the land department.-Lands containing the following substances have been held by the land department to fall within the designation of mineral lands, and as such to be subject to entry under the mining laws:

'Copp's Min. Lands, p. 50; Tulare Oil and M. Co. v. S. P. R. R. Co., 29 L. D. 269. See, also, Gesner v. Gas Co., 1 James, N. S. 72; Gesner v. Cairns, 2 Allen, N. B. 595.

2 Union Oil Co. (on review), 25 L. D. 351 (reversing S. C., 23 L. D. 222); Copp's Min. Lands, p. 160; 1 Copp's L. O., p. 179; A. A. Dewey, 9 Copp's L. O., p. 51; McQuiddy v. State of California, 29 L. D. 181; Kern Oil Co. v. Clotfeter, 30 L. D. 583. See, also, act of congress, 29 Stats. at Large, p. 526; Murray v. Allard, 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 441; Thompson v. Noble, 3 Pittsb. 201; Gill v. Weston, 110 Pa. St. 313; Gird v. California Oil Co., 60 Fed. 531; and see Detlor v. Holland, 59 Ohio St. 492, 49 N. E. 690.

'Copp's Min. Lands, pp. 50, 100, 2 L. D. 707.

• Id.

'Id., pp. 121, 176; 1 Land Dec. 578; Aldritt v. Northern Pac. R. R. Co., 25 L. D. 349.

Copp's Min. Lands, p. 182.

'Id., p. 161.

•Id., p. 309; Phifer v. Heaton, 27 L. D. 57; McQuiddy v. California, 29 L. D. 181.

'Morrill v. Northern Pac. R. R. Co., 30 L. D. 475; 10 Copp's L. O., p. 50; 12 L. D. 1; Shepherd v. Bird, 17 L. D. 82; Copp's Min. Lands, pp. 176, 309. See, also, Freezer v. Sweeney, 8 Mont. 508, 21 Pac. 20; contra, Wheeler v. Smith, 5 Wash. 704, 32 Pac. 784.

10 Copp's Min. Lands, p. 176; Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233; Forsythe v. Weingart, 27 L. D. 680; Shrimpf v. N. P. R. R. Co., 29 L. D. 327.

"Copp's Min. Lands, p. 88.