the rights of a junior location properly covering the apex.

There is still another suggestion which presents increased difficulties. Could the tunnel locator, with his linear claim on the lode discovered in the tunnel, follow that vein upward? If so, how far and within what planes? There is no law which sanctions the following of a vein on its upward course. Let us illustrate some of these inquiries by the use of a diagram.

A locates a tunnel-site on the line x-x, starting at the base of the mountain, and perfects his location prior to the surface discoveries and locations indicated by B, C, and D on the crest of the mountain. The veins of these surface locations-any one of them may be singled out for illustrative purposes-dip in the direction of the tunnel, as indicated by the arrows and extended endline planes. It is probable, perhaps inevitable, that each

one of these veins will, on its downward course, intersect the plane of the tunnel bore, and it requires no stretch of the imagination to assume that at some point, as the tunnel is driven into the hill, it may cut one or all of these veins. What will be the rights of the parties? The angle at which the tunnel must intersect these veins is not specified in the law. Nor does the law specify in terms that the apex of the vein must cross the line of the tunnel. In discovering and locating the claims B, C, and D, the locators, have not invaded the area of the tunnel location. They are all outside of the tunnel parallelogram, three thousand feet square, within which prospecting is practically inhibited. Yet if these veins are discovered in the tunnel, must not the rights of B, C, and D, although covering the apex and without the reserved area, yield to the right acquired by discovery in the tunnel? When the statute says that the tunnel discoverer shall be entitled to veins within three thousand feet of the tunnel, it must mean that he is entitled to such veins as are discovered within that distance. The statute does not limit his rights to lodes having their apices within three thousand feet of the face of the tunnel or within the limits of tunnel location three thousand feet square.

In the cases illustrated, may the tunnel discoverer follow the vein upward? or is there to be a horizontal partition between the tunnel locator and the mining claimants of B, C, and D?

II. MANNER OF ACQUIRING TITLE TO COAL LANDS.

ARTICLE I. INTRODUCTORY.

$495. Classification of coal as a mineral-History of legislation-Characteristics of the system.

§ 496. Rules for determining character of land.

§ 497. Geographical scope of the coal-land laws.

8495. Classification of coal as a mineral-History of legislation-Characteristics of the system. As observed in a previous section,1 prior to the passage of the coal land act of July 1, 1864, the land department did not regard coal as a mineral within the meaning of the prior legislation of congress, yet this substance, although essentially of vegetable origin, has, generally speaking, been classified as mineral, as it came within the etymological signification of the term, being obtained from underground excavations or "mines." 2

The act above referred to 3 was the first legislation by congress providing a method for the disposal of coal lands. It was followed in the succeeding year by a supplemental act, and in 1873 congress passed a law which is the basis of the existing system.3

Whatever may have been the rule as to the classification of coal lands prior to the passage of the act of 1864,

1 Ante, § 140.

Ante, § 88.

13 Stats. at Large, p. 343.

Lindley on M.-54

March 3, 1865, 13 Stats. at Large, p. 529.

'Rev. Stats., §§ 2347, 2352.

since that date they are classified as mineral by legislative construction.1

3

As heretofore noted,2 lands containing coal are not, as a rule, excepted from the operation of the railroad grants, nor are they considered by the department as lands subject to "mineral entry" within the meaning of the act of June 3, 1878, granting the privilege of cutting timber upon so much of the public domain in certain states as is subject to mineral entry."

Coal lands are mineral lands within the meaning, generally, of the laws relating to the public lands. They may not be selected in lieu of lands in forest reserves." But when found within forest reserves they are subject to appropriation the same as other mineral lands.

It will serve no useful purpose to retrace the history of congressional legislation on this subject. The coalland laws form a system peculiar to themselves, having nothing in common with the general mining laws, and strictly speaking, are not in pari materia. The ownership and possession of this class of public lands were never subject to regulation by local rules and customs, and from the passage of the first act in relation to them to the present time the method of acquiring title to them has been simple, and unaccompanied by the perplexities that have arisen in the administration of the laws relative to lands containing lodes and placers. Such questions as have arisen in reference to coal have been adjudicated entirely within the land department. No

1 United States v. Mullan, 7 Saw. 466, 10 Fed. 785, S. C. on appeal, 118 U. S. 271, 6 Sup. Ct. Rep. 1041; In re Crowder, 30 L. D. 92, 95; Brown v. Northern Pac. R. R. Co., 31 L. D. 29.

Ante, § 152.

See Rocky Mountain C. and I. Co., 1 Copp's L. O. 1.

420 Stats. at Large, p. 88.

5 Instructions to Timber Agents, 2 L. D. 827.

6 Brown v. Northern Pac. R. R. Co., 31 L. D. 29.

In re Crowder, 30 L. D. 92, 95.

controversies arising out of the proper construction of these laws are, in the process of obtaining title, relegated to the courts for determination. The coal-land system, like that applicable to homestead, pre-emption, and other agricultural entries, is administered by the executive department of the government. For this reason we note the almost total absence of judicial decisions upon the subject, and must look exclusively to the land department for the rules of interpretation.

2496. Rules for determining character of land.While the system prescribing the method for obtaining title to lands containing coal is different from that applicable to other mineral lands, the rules for determining whether or not a given tract is subject to entry under the coal-land laws are analogous to those applicable to other classes of mineral deposits.1

They may be thus formulated with special reference to coal:

(1) All classes of coal deposits, whether anthracite, bituminous, lignite, or cannel, are embraced within the coal-land laws; 2

(2) It must be shown that as a present fact the land is more valuable for the purpose of its coal product than for any other purpose; that the substance exists therein in paying quantities, or that it is sufficiently valuable to be worked as a mine."

These facts must be shown by the actual production of coal, or by satisfactory evidence that, taking the

Hamilton v. Anderson, 19 L. D. 168; Commrs. of Kings County v. Alexander, 5 L. D. 126.

6

Smith v. Buckley, 15 L. D. 321.

'Jones v. Driver, 15 L. D. 514.

Hamilton v. Anderson, 19 L. D. 168; Commrs. of Kings County v. Alexander, 5 L. D. 126.