This power of supervision and correction, however, is not an unlimited or arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered.1

Generally speaking, and for all practical purposes, the issuance of the final certificate to an agricultural entryman closes the case, and no collateral attack on the certificate so issued is allowed.

The land embraced in such final entry is absolutely withdrawn from the public domain, and is no longer subject to exploration or purchase under the mining laws, although it may subsequently appear that the lands are essentially mineral. Where a contest is pending, as a rule the certificate does not issue until final disposal is made, on appeal to the commissioner, and from him to the secretary, if such appeals be taken. Under ordinary circumstances, the supervision of the general land office at Washington is confined to an examination of the record as made in the local offices, for the purpose of ascertaining whether the facts presented justify the conclusions reached, the requisite jurisdictional facts appearing.

209. The reservation of "known mines" in the preemption laws.-We have heretofore said 2 that the term "known mines," as used in the pre-emption act of 1841, and incorporated into the homestead laws by adoption under the provisions of section twenty-two hundred and eighty-nine of the Revised Statutes, is not the precise equivalent of the term "mineral lands," as used in the mining laws, and should undoubtedly receive a more 1 Cornelius v. Kessel, 128 U. S. 456, 461, 9 Sup. Ct. Rep. 122; Michigan Lumber Co. v. Rust, 168 U. S. 589, 18 Sup. Ct. Rep. 208.

See, ante, § 86.

Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 46.

limited interpretation. It will be borne in mind that when this pre-emption act was passed the only mines of which the government had any knowledge were those containing copper, in the region of the great lakes, and those containing lead, in the Mississippi valley.1

The privilege of pre-emption during that period could be exercised only as to surveyed lands, and the public surveys had not been extended west of the Mississippi river. The government had at that time inaugurated a policy of leasing lead mines, and it is probable that the framers of these earlier laws had particular reference to those which came within the category of opened mines. In construing the term " known mines," as used in this law, which was subsequently re-enacted in later acts, and incorporated into the homestead law by adoption,2 the supreme court of the United States announced its opinion that, so far as the decision of that court had gone, no lands had been held to be "known mines," unless at the time the rights of the purchaser accrued there was upon the ground an actual and opened mine which had been worked or was capable of being worked.3 Said that court, after reviewing the case of Deffeback v. Hawke:-4

"If upon the premises at that time there were not "actual known mines' capable of being profitably "worked for their product, so as to make the land more "valuable for mining than for agriculture, a title to "them acquired under the pre-emption act can not be "successfully assailed."

1 See, ante, § 36.

2 Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 46.

Colo. C. and I. Co. v. United States, 123 U. S. 307, 327, 8 Sup. Ct. Rep. 121; Standard Quicksilver M. Co. v. Habishaw, 132 Cal. 115, 64 Pac. 113.

115 U. S. 392, 6 Sup. Ct. Rep. 95.

'Colo. C. and I. Co. v. United States, 123 U. S. 307, 328, 8 Sup. Ct. Rep. 121. See, also, Richards v. Dower, 81 Cal. 44, 22 Pac. 304; United

66

We think we are justified in our view, that "known "mines" and "mineral lands" are not legal equivalents. As was said by Judge Ross, the words "min"eral lands" are certainly more general and much broader than the words, "lands on which are situated any known salines or mines." At all events, the preemption laws have been repealed, and the term "known "mines" has been eliminated from the homestead laws.2 The nearest approach to an equivalent still remaining in the public land laws is the word "mine," as used in the townsite laws, which laws have been fully discussed in a previous article.1

210. Timber and stone lands.-The act of June 3, 1878,5 commonly called the "Stone and timber act," was originally confined in its operations to California, Oregon, Nevada, and Washington; but by an amendatory act, passed August 4, 1892, its provisions were extended to all the public land states."

Under this act lands chiefly valuable for timber or stone, unfit for cultivation, and consequently not subject to disposal under the homestead laws, may be entered. The quantity is limited to one hundred and sixty acres to any one person.

States v. Reed, 28 Fed. 482; Gold Hill Q. M. Co. v. Ish, 5 Or. 104; In re Abercrombie, 6 L. D. 393; Bellows v. Champion, 4 Copp's L. O. 17; Nancy Ann Caste, 3 L. D. 169; Harnish v. Wallace, 13 L. D. 108; United States v. Blackburn, (Ariz.), 48 Pac. 904.

'Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 46. But see Brady v. Harris, 29 L. D. 426.

2 Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 46.

3 Rev. Stats., § 2392.

See, ante, art. v, § 176. For comparison of various classes of patents, see Horsky v. Moran, 21 Mont. 345, 53 Pac. 1064.

$20 Stats. at Large, p. 89.

• United States v. Smith, 8 Saw. 101, 11 Fed. 487; United States v. Benjamin, 10 Saw. 264, 21 Fed. 285.

27 Stats. at Large, p. 348.

An application to purchase under this act must be supported by evidence that the tract contains no mining or other improvements, except for ditch or canal purposes (when any such exist), nor any valuable deposit of gold, silver, cinnabar, copper, or coal. If the tract embraces a mining location based upon a discovery of a lode, and the showing is such as would justify a prudent man in spending his money in developing the same, the mining location may be segregated, and the balance of the land passed to entry under the stone and timber act.1

Provisions are made for the determination of the character of the lands prior to the issuance of patents, and for the issuance of final certificates of entry upon payment.

The lands embraced within an application to purchase under this act are not withdrawn from the mass of the public domain until such final certificate is issued,2 and until that time are subject to exploration and purchase under the mining laws, if they are, in fact, mineral in character.3

The same principles of law in this respect apply to timber and stone entries as to inchoate homestead entries, discussed in preceding sections. The judgment of the department, culminating in the issuance of the final receipt or certificate, is final and conclusive as to the character of the land, and no subsequent discovery of mineral can affect the title of the purchaser. This is a universal rule governing all classes of entries on the public domain.

With particular reference to lands chiefly valuable for

1 Michie v. Gothberg, 30 L. D. 407.

See Hawley v. Diller, 178 U. S. 476, 20 Sup. Ct. Rep. 986.

Kaweah Colony, 12 L. D. 326.

4 Chormicle v. Hiller, 26 L. D. 9.

building-stone, the department had held at different times that prior to passage of the stone and timber act such lands might be entered under the placer mining laws, which practice was sustained by some of the courts,2 and denied by others.3

The passage of the act of August 4, 1892, however, restored this class of lands to the category of mineral lands, and henceforward they are subject to entry under the so-called placer mining laws. Such lands are mineral within the meaning of the railroad grants; but are not reserved from grants to the state of sixteenth and thirty-sixth sections. In the opinion of the land department, this last act did not withdraw such lands from entry under the stone and timber act, thus holding that stone lands may be entered either as placers or under the stone and timber act, at the option of the claimant.s Lands must be unoccupied to be subject to entry under this act.

211. Scrip.-There are innumerable classes of socalled land scrip-such as agricultural college, Porterfield, Valentine, Sioux half-breed, supreme court, and others in infinite variety, issued under special laws of

1 Bennett's Placer, 3 L. D. 116; McGlenn v. Weinbroeer, 15 L. D. 370; Vandoren v. Plested, 16 L. D. 508; Maxwell v. Brierly, 10 Copp's L. O. 50; Hayden v. Jamison, 26 L. D. 373, (reversing S. C., 24 L. D. 403). Contra: In re Delaney, 17 L. D. 120; Clark v. Ervin, Id., 550; Id., 16 L. D. 122; Conlin v. Kelly, 12 L. D. 1; In re Simon Randolph, 23 L. D. 322. See, ante, § 139.

2

* Freezer v. Sweeney, 8 Mont. 508, 21 Pac. 20; Johnson v. Harrington, 5 Wash. 93, 31 Pac. 316.

3 Wheeler v. Smith, 5 Wash. 704, 32 Pac. 784.

27 Stats. at Large. p. 348.

5 See, ante, §§ 158-159.

See, ante, § 139.