entered under the placer laws. The difference between asphaltum, mineral tar, petroleum, and natural gas, is only one of degree. 8 424. Brick clay. If lands containing kaolin, or china clay, are subject to entry under the placer laws, it is difficult to see upon what principle lands chiefly valuable for deposits of brick clay should be excepted from such entry. But Secretary Vilas held that, although a given tract was undoubtedly more valuable as a "clay placer" than for any other purpose, it was not mineral land, and could not be appropriated under the mining laws.1 The manufactured product from a bed of brick clay is more commonplace than the porcelain obtained from kaolin, or china clay, but we cannot understand why this should make any difference. The element of value in both cases rests upon the marketability of the manufactured product. Under the English decisions, brick clay is classified as a mineral under the "railway clauses "act," and we can conceive of no logical reason why, in the administration of the federal mining laws, any discrimination should be made as between the finer and coarser grades of a substance, if it can be extracted, removed, and marketed at a profit. The last expression of the land department, however, is opposed to the classification of deposits of ordinary brick clay as "mineral" within the meaning of the laws applicable to placer locations. Lands containing this substance fall within the definition of agricultural lands.3 We deferentially suggest that while it is true that this last analysis is in accordance with previous depart Dunluce Placer Mine, 6 L. D. 761. See, also, Jordan v. Idaho Aluminum M. and M. Co., 20 L. D. 500. Ante, § 92, p. 100, notes 3 and 4. mental rulings as to brick clay, the result reached is not altogether consistent with the principle repeatedly announced by the department with reference to numerous other non-metallic substances,-that marketability at a profit is the test of the mineral character of a given tract of public land. 8 425. Phosphatic deposits.-The only public land state in the union where the phosphatic deposits occur in appreciable quantities is Florida. They have been extensively mined in South Carolina since 1868, but their existence in Florida was not known until 1887, since which time they have come into prominence, and have assumed considerable economic importance. They are, in general, most abundant in ancient river bottoms, where they have been washed together from their original beds.1 Since 1890 mining of these deposits has been conducted upon a large scale, the shipments constituting a heavy item in the freights of the several railroads of the state. The raw material is consumed in large quantities in the United States, and it is exported to the various parts of Europe.2 Secretary Smith held that land chiefly valuable for phosphatic deposits is mineral in character, although, under a special act of congress, a homestead claimant who had initiated a right in ignorance of the existence of such deposits within the tract might perfect his entry, notwithstanding their discovery prior to the final entry, thus changing the rule governing ordinary mineral lands within inchoate homestead claims, announced in a previous section." The same secretary also held that under the acts 'Dana's "System of Mineralogy," 6th ed., p. 769. "Preliminary Sketch of the Phosphates of Florida," by George H. Eldridge-Trans. Am. Inst. M. E., vol. xxi, p. 196. 3 Gary v. Todd, 18 L. D. 58. Id., on review, 19 L. D. 475. Ante, § 208. granting land to the Florida Railway and Navigation Company, passed respectively in 1856 and 1874, lands containing this class of deposits might be selected in satisfaction of the grants. The reasons assigned were: (1) That the act of 1856 did not in terms reserve mineral lands; (2) That in the act of 1874, where mineral lands are reserved, the word "mineral" is used in a limited sense, and cannot be construed to include phosphates. This decision was subsequently overruled.2 We have fully explained the law as we understand it in the article on railroad grants.3 As a matter of present classification, Secretary Smith concedes that lands of this class are subject to entry under the mining laws. The department treats guano islands found within the public domain as mineral land.4 426. Tailings.-To suffer tailings to flow where they may, without obstructions to confine them, is equivalent to their abandonment. If they lodge on the lands of another they are considered as an accretion, and belong to him. If they accumulate on vacant and unappropriated public land, it has been the custom in the mining regions of the west to recognize the right of the first comer to appropriate them by proceedings analogous to the location of placer claims. As was said by the supreme court of Nevada, Tucker v. Florida Ry. and Nav. Co., 19 L. D. 414. Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233; Florida Cent. and Penin. R. R. Co., 26 L. D. 600. 3 Ante, §§ 158, 159. 4 Richter v. State of Utah, 27 L. D. 95. 5 Jones v. Jackson, 9 Cal. 238, 245. •Id. 'Dougherty v. Creary, 30 Cal. 291, 89 Am. Dec. 116. Lindley on M.-49 66 "Although not a mining claim within the strict "meaning of the expression as generally used in this country, a 'tailings claim' is so closely analogous "to it that the propriety of subjecting the acquisition “and maintenance of the possession of it to the rules governing the acquisition of the right to a strictly "mining claim at once suggests itself."1 The land department has recognized this possessory right and permitted entries to be made of lands containing beds of tailings, under the laws applicable to placers. There are no adjudicated cases in the reports of department decisions upon this subject which have come under our observation, but we have knowledge of several instances where patents for this class of claims have been issued under the mining laws. - ? 427. Subterranean gravel deposits in ancient riverbeds. Subterranean channels of ancient streams into which beds of auriferous gravels have been deposited are sometimes called deep, or ancient, placers. The most noted of these are found in California.2 These gravel-beds lie upon a "bed-rock" which, at some period of geological history, formed the bed of an ancient river. They are usually immediately overlain by a formation of clay gouge, and on this clay covering is a capping of lava, sometimes hundreds of feet in thickness. These subterranean deposits are reached by means of tunnels to the bed-rock, and thence following the meanderings of the channel. These deposits certainly occupy a fixed position in the mass of the mountain, although they do not fall within the popular definition of lodes, or veins. The land department, at For interesting and valuable discussion on the subjects of these deep gravels, see monographs of Mr. Ross E. Browne, "The Ancient River "Beds of the Forest Hill Divide," California State Mineralogist's report (1890), p. 435, and of Mr. John Hays Hammond, the "Auriferous "Gravels of California," in the report of 1889, p. 105. an early period, classified them as "placers," and patents have uniformly been issued upon locations of this class of deposits made under the placer laws.1 The supreme court of California has upheld this classification.2 The inconvenience of this rule will be shown when we come to consider the requirements as to a discovery within the limits of each placer location. But this is an argument which should be addressed to congress in order that this class of deposits may receive separate consideration and be relieved from conditions which are not unreasonable when applied to superficial placers, but which become exceedingly onerous and burdensome when applied to these subterranean deposits. 428. Beds of streams. As to whether gravel deposits lying on the beds of watercourses may be appropriated under the placer laws will depend on circumstances. If the stream is navigable, certainly no right to appropriate its bed for mining purposes under the federal mining laws can be sanctioned. The beds of such rivers and their banks as far as highwater mark belong to the state, and not to the federal government. They were not granted by the constitution to the United States, but were reserved to the states respectively, and the new states have the same rights of sovereignty and jurisdiction with regard to this class of lands as the original states.3 The right of the United States to the public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant the beds of navigable streams.* 1 Commissioner's Letter, Copp's Min. Dec. 78. Gregory v. Pershbaker, 73 Cal. 109, 115, 14 Pac. 401. 3 Pollard v. Hagan, 3 How. 212; Pollard's Heirs v. Kibbe, 9 How. 471. 'Pollard v. Hagan, 3 How. 212. |