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In the case of Bennett,1 Commissioner McFarland expressed the opinion that lands of such character were subject to such entry.

Some years later, Assistant Secretary Chandler declined to accept the views of the commissioner, and established the contrary doctrine.2 The following year, the same assistant secretary "explained” and distinguished" his previous ruling, and practically adopted the views of Commissioner McFarland in a case involving the interpretation of the law as it existed prior to the passage of the act of August 4, 1892.3

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Secretary Noble held that this class of land was not "mineral land" so as to preclude its entry under the agricultural land laws, although the proof showed that the tract in question was more valuable for the building-stone it contained than for agricultural purposes, following the first ruling of Assistant Secretary Chandler.4

A few months later Secretary Smith held that under the law as it existed prior to the passage of the act of August 4, 1892, land containing a deposit of sandstone of a superior quality for building and ornamental purposes, and valuable only as a stone quarry, might be entered as a placer claim under the general mining laws, which ruling was practically ignored by Assistant Secretary Sims in a later case."

Secretary Bliss originally expressed the opinion that prior to 1892 lands chiefly valuable for building-stone could not be purchased under the placer laws; but on 11884, 3 L. D. 116.

Conlin v. Kelly (1891), 12 L. D. 1.

3 McGlenn v. Wienbroeer, 15 L. D. 370.

Clark v. Ervin (Feb., 1893), 16 L. D. 122.

5 Van Doren v. Plested, 16 L. D. 508. In re Delaney, 17 L. D. 120.

23 L. D. 329.

7 Hayden v. Jamison, 24 L. D. 403.

See, also, in re Simon Randolph,

review of the same case he vacated his first decision and reached an opposite conclusion. The land department has finally settled the rule that building-stone is a mineral.2

The passage of the act of congress referred to, occurring as it did subsequent to Assistant Secretary Chandler's first ruling, was a legislative affirmance of the theory of interpretation applied to other classes of nonmetallic substances, and a recognition of the rule which has for its foundation the element of commercial value. More than once congress has intervened when the department has undertaken to disregard this element, by applying arbitrary rules to individual cases. A notable instance will be found when we reach the subject of petroleum.

The supreme court of Montana followed the ruling of Commissioner McFarland in the Bennett case. The supreme court of Washington declined to accept the reasoning of the supreme court of Montana, and held, that the term "mineral" was intended to embrace only deposits of ore, and the idea of a non-mineralized deposit was excluded.*

As the law now stands, lands containing deposits of building-stone in such quantities as to render them more valuable for quarrying purposes than any other, may be entered as placers under the mining laws, or purchased under the stone and timber act of June 3, 1878.5

Lands containing limestone used for fluxing in metallurgical operations, or for the purpose of manufactur

1 Hayden v. Jamison, 26 L. D. 373.

Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Hayden v. Jamison, on review, 26 L. D. 373; Forsythe v. Weingart, 27 L. D. 680; Schrimpf v. N. P. R. R. Co., 29 L. D. 327.

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

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

520 Stats. at Large, p. 89; Forsythe v. Weingart, 27 L. D. 680. Ante, § 210.

ing the lime of commerce, have been held to be subject to entry under the placer laws.1

Sandstone is held to be a mineral, as well as slate, marble, and granite.*

8 422. Petroleum.-Petroleum has always been recognized as a mineral. As was said by the supreme court of Pennsylvania: "It is a mineral substance "obtained from the earth by the process of mining, and "lands from which it is obtained may, with propriety, "be called mining lands;" although that court had previously held that while admitting petroleum to be mineral, it was not included in a reservation of “mineral "' in a deed.”

Judge Ross, sitting as circuit judge in the ninth circuit, held that public land containing petroleum could only be acquired pursuant to the provisions of the mining laws relating to placer claims. It would seem that

1 Commissioner Burdett (1875), Copp's Min. Lands, 176; Maxwell v. Brierly (1883), 10 Copp's L. O. 50; Shepherd v. Bird (1893), 17 L. D. 82; Morrill v. Northern Pac. R. R. Co., 30 L. D. 421; Johnston v. Harrington, 5 Wash. 93, 31 Pac. 316.

Beaudette v. N. P. R. R. Co., 29 L. D. 248.

Schrimpf v. N. P. R. R. Co., 29 L. D. 327; Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Beaudette v. N. P. R. R. Co., 29 L. D. 327; Phelps v. Church of Our Lady, 115 Fed. 883; Armstrong v. Lake Champlain Granite Co., 147 N. Y. 495, 49 Am. St. Rep. 683, 42 N. E. 186; Brady v. Brady, 31 Misc. Rep. 411, 65 N. Y. Supp. 621.

Armstrong v. Lake Champlain Granite Co., 147 N. Y. 495, 49 Am. St. Rep. 683, 42 N. E. 186; Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, S. C. on appeal, 104 Fed. 425.

Ante, § 93.

Gill v. Weston, 110 Pa. St. 316, 1 Atl. 921. See, also, Stoughton's Appeal, 88 Pa. St. 198; Thompson v. Noble, 3 Pittsb. 201; Murray v. Allred, 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436.

'Dunham v. Kirkpatrick, 101 Pa. St. 36, 47 Am. Rep. 696. See, also, Detlor v. Holland, 57 Ohio St. 492, 49 N. E. 690.

Gird v. California Oil Co., 60 Fed. 531, 532. See, also, Olive L. and D. Co. v. Olmstead, 103 Fed. 588.

this view was entertained by the land department,1 until Secretary Hoke Smith, in August, 1896, ruled that petroleum lands were not mineral lands, could not be entered under the mining laws, and might be selected by the states in lieu of lost sixteenth and thirty-sixth sections.3

Congress promptly intervened, as it had on a previous occasion in reference to building-stone, and by act approved February 11, 1897, ordained:

"That any person authorized to enter lands under "the mining laws of the United States may enter and "obtain patent to lands containing petroleum, or other "mineral oils, and chiefly valuable therefor, under the "provisions of the laws relating to placer mineral "claims: Provided, That lands containing such petro"leum, or other mineral oils, which have heretofore "been filed upon, claimed, or improved as mineral, but "not yet patented, may be held and patented under the "provisions of this act the same as if such filing, claim, or improvement were subsequent to the date of the 66 passage hereof."

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The land department subsequently overruled the decision of Secretary Smith."

This, of course, settles the question for the future. We think the act of congress was but a legislative recognition of the law as it previously existed. As was said by Secretary Bliss,

"This legislative action so promptly taken after the "departure from the earlier rulings and the long estab"lished practice thereunder is significant and can

1In re A. A. Dewey, 9 Copp's L. O. 51; Downey v. Rogers, 2 L. D. 707; In re Samuel Rogers, 4 L. D. 284; Roberts v. Jepson, 4 L. D. 60; Peru Oil Co., 16 L. D. 117.

Ex parte Union Oil Co., 23 L. D. 222.

Chandler v. State of California, Oct 27, 1896.

Ante, § 421.

Union Oil Co., on review, 25 L. D. 351; McQuiddy v. State of California, 29 L. D. 181.

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"hardly be considered as less than a disapproval by congress of the changed ruling."'1

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8423. Natural gas. -Natural gas is as much an article of commerce as iron ore, oil, coal, petroleum, or any other of the like products of the earth.2

"It is true," said the supreme court of Pennsylvania, "that gas is a mineral, but it is a mineral with peculiar "attributes, which require the application of precedents arising out of ordinary mineral rights, with much "more careful consideration of the principles involved "than the mere decision.'' 3

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It was held by the court of appeals of Ontario that natural gas is a mineral within the meaning of a statute which gives corporations power to sell or lease mineral rights under highways; and the supreme court of the United States has decided that this commodity, when brought into this country from Canada through pipes, was exempt from duty as "crude mineral."

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While, owing to its "fugitive and wandering existence within the limits of a particular tract," the appropriation of it under the mining laws applicable to placers suggests an apparent absurdity, yet, as it is a mineral, is an article of commerce, and of great utility in an economic sense, we do not see why lands shown to contain it in quantities sufficient to make them more valuable for that purpose than any other should not be

2

Union Oil Co., on review, 25 L. D. 351.

State v. Indiana and Ohio O. G. and M. Co., 2 Interstate Com. Rep. 758. See interesting note in 25 L. R. A. 222.

3 Westmoreland and Cambria Nat. Gas Co. v. De Witt, 130 Pa. St. 235, 18 Atl. 724, (cited in Murray v. Allred, 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355, 359).

Ontario Nat. Gas Co. v. Gosfield, 18 Ont. App. 626.

• United States v. Buffalo Nat. Gas Fuel Co., 172 U. S. 339, 19 Sup. Ct. Rep. 200, affirming 78 Fed. 110, 45 U. S. App. 345, and 73 Fed. 191. See, also, vol. 62 Eng. and Min. Journal, p. 602.

Brown v. Vandergrift, 80 Pa. St. 147. See, also, Murray v. Allred, 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355.

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