In prosecuting work in the field, the parties conducting the field-work are charged with the duty of noting at the end of their notes of survey coal banks or beds, peat or turf grounds, minerals, and ores, with particular description of the same as to quality and extent, and all "diggings" therefor; also, salt springs and licks, together with a general description of the township in the aggregate, as respects the face of the country, its soil and geological features, timber, minerals, water, and the like.1

105. What constitutes the surveyor - general's return. The original field-notes and accompanying data, with a topographical sketch of the country surveyed, are returned to the surveyor-general, who examines them, and, if found correct, approves them, whereupon the draughtsman protracts the same on township plats in triplicate. After approving the plats, the surveyor-general files the original in his office, the duplicate is sent to the local land office, to enable the register and receiver to dispose of the lands embraced in the several townships, and the triplicate is transmitted to the commissioner of the general land office. These approved field-notes, taken in connection with the township plats protracted in the office, constitute what is known as the surveyor-general's return.

106. Prima facie character of land established by the return. The lands embraced in the survey are treated prima facie as being of the character shown by this return, and are said thenceforward to be borne on the official records as agricultural, timber, or mineral land, according to the facts developed by the return. The books of the land office are presumed to correctly

1

Instructions to surveyors-general, Public Domain, p. 575 et seq.

show the character and condition of the land.1 If lands are noted on the plat as mineral, they are prima facie mineral lands, and no entry thereof will be permitted, except under the mining laws, until the presumption arising from the return is overcome by satisfactory proofs.2

A return by the surveyor that sixteenth and thirtysixth sections granted to the states for school purposes are mineral, and the approval of his field-notes and plats, and the filing thereof in the general land office, are a sufficient determination that the lands are mineral to authorize a selection of indemnity school lands by the state.

3

If the lands are not returned as mineral, the presumption obtains that they are agricultural in character, and therefore cannot be entered under the mining laws until the return is contradicted. At all inquiries held for the purpose of investigating the character of surveyed lands, this return has been said to rank as a deposition."

It is unnecessary to say that this return is open to contradiction. It concludes no one. The return may be overcome by showing a discovery of sufficient mineral

1 Olive Land and D. Co. v. Olmstead, 103 Fed. 568, 574.

'Gold Hill Q. M. Co. v. Ish, 5 Or. 104; Cowell v. Lammers, 10 Saw. 246, 21 Fed. 200; Johnston v. Morris, 72 Fed. 890; Dobbs' Placer, 1 L. D. 567; Dughi v. Harkins, 2 L. D. 721; Cole v. Markley, Id. 847; Hooper v. Ferguson, Id. 712; Roberts v. Jepson, 4 L. D. 60; Cosmos Co. v. Gray Eagle Co., 104 Fed. 20, 48; Richter v. State of Utah, 27 L. D. 95.

Johnston v. Morris, 72 Fed. 890; In re State of California, 23 L. D. 423.

Bedel v. St. Paul M. and M. Co., 29 L. D. 254.

Kirby v. Lewis, 39 Fed. 66; United States v. Breward, 16 Peters, 147; United States v. Hanson, Id. 196. The return of the commission appointed under the act of February 26, 1895, (see, post, § 160,) is given by the land department the same legal effect as the surveyor-general's return. Circular, 25 L. D. 446.

Caledonia M. Co. v. Rowen, 2 L. D. 714.

'Winscott v. N. P. R. R. Co., 17 L. D. 274.

to make the land more valuable for mining than for agriculture.1

3

Indications of mineral do not demonstrate that there is a valuable deposit. A mere location certificate is not in itself evidence of the mineral character of the land, and will not be sufficient to overcome the return. But when a legal mineral location has been made (which, of course, must be based upon a sufficient discovery), the slight presumption in favor of the return is overcome, and the burden of proof shifts to the party attacking the mineral claim. The allowance of a mineral entry of a tract, as a matter of course, overcomes a return as agricultural.

While the rule which treats the surveyor-general's return as establishing prima facie the character of the land is a convenient one in controversies arising between individuals over an asserted right to enter public lands, as determining upon whom rests the burden of proof, it has been productive of iniquitous results in administering the colossal land grants to railroad companies; and we are justified in asserting that its force as a universal rule has been materially weakened by the recent decisions of both the land department and the courts of last resort. The return constitutes but a small element of consideration when the question of the character

1

Magruder v. Oregon and Cal. R. R. Co., 28 L. D. 174, overruling Sweeney v. N. P. B. R. Co., 20 L. D. 394; Walker v. S. P. R. R. Co., 24 L. D. 172, and other cases.

• Tulare Oil and M. Co. v. S. P. R. R. Co., 29 L. D. 269.

Etling v. Potter, 17 L. D. 424; Berry v. C. P. R. R. Co., 15 L. D. 463; Magruder v. Oregon and Cal. R. R. Co., 28 L. D. 174; McQuiddy v. State of California, 29 L. D. 181; Elda Mining Co., Id. 279; Holton v. N. P. R. R. Co., 30 L. D. 442; Harkrader v. Goldstein, 31 L. D. 87.

4 State of Washington v. McBride, 18 L. D. 199; N. P. R. R. v. Marshall, 17 L. D. 545; Rhodes v. Treas, 21 L. D. 502; Walker v. S. P. R. R., 24 L. D. 172.

• Johns v. Marsh, 15 L. D. 196; Walton v. Batten, 14 L. D. 54.

of the land is in issue. It is chiefly important as determining upon whom rests the burden of proof.2

When it is considered that sections of one mile square are the smallest tracts the outboundaries of which the law requires to be actually surveyed; that the minor subdivisions are not surveyed in the field, but are defined by law, and protracted in the surveyor-general's office on the township plats, the lines being imaginary; 3 that surveyors, as a rule, are neither practical miners nor geologists; that they are compensated not for the volume of information furnished as to the character of the lands, but for the number of linear miles surveyed in the field; that their investigation as to the character of the land is wholly superficial,-it would seem that but little weight should be given to these returns. If the surveyor, in subdividing a township into sections, encounters a mine in active operation, we may find some mention of that fact in his field-notes; but usually he does not go beyond this. A fair illustration of the unreliability of these returns in this respect may be found in almost all the mineral districts over which the public surveys have been extended. We note the following caustic criticism of the land department itself on this subject. In an official communication (March 11, 1872) from Mr. Drummond, commissioner of the general land office, to Mr. Delano, secretary of the interior, the commissioner says:

"To illustrate the unreliability of the surveyors' re"turns as to the character of these lands, and the abso"lute necessity for the rule which, with your advice "and consent, I have adopted, it may be proper to refer "in this connection to some of the applications for

1 Aspen Cons. M. Co. v. Williams, 27 L. D. 1.

Magruder v. Oregon and Cal. R. R. Co., 28 L. D. 174; Tulare Oil Co. v. S. P. R. R. Co., 29 L. D. 269.

3 Public Domain, p. 184.

patents for mines in California, the lands embracing "which were returned on the official township plats as "agricultural in character, the existence of mines there"in not becoming known to this office until after the "receipt of such applications for mining title."

(Here follows a list of thirty-five mines.)

"The foregoing claims are all within the Sacramento 'district, and many more could be enumerated were "it necessary to illustrate the want of reliability of the 66 surveyor's returns as to the character of these lands. “... But with the kind of returns furnished it is

totally impossible to determine whether any given "tract in the mineral district is properly agricultural "land within the meaning of the law or not, or whether "this office could, with a due regard for the execution "of the law, proceed to patent such as agricultural “land without further investigation."1

And in an earlier communication the same commissioner uses the following apt language:

"I am impressed with the conviction that it is neither "in harmony with the spirit or intent of the laws of congress, nor with the true public policy, to sanction "the indiscriminate absorption of the lands in what "has heretofore been known as the reserved mineral "belt in the public domain under laws only applicable to lands clearly non-mineral, simply because the dep"uty surveyors failed to return the same as mineral "in character. This view is strengthened by the fact "that very many, in fact the majority, of the applica"tions for mineral patents, are found, upon consulting "our official township plats, to be within subdivisions "not reported as mineral in character.”2

In a circular letter issued in December, 1871, to the registers and receivers of land offices in the mining regions of California, instructing them to withhold from