tract as a whole, coal exists therein in sufficient quantities to make the same more valuable for mining than for agricultural purposes.1

The extent of the deposit may be shown by the testimony of geological experts and practical miners, taken in connection with the actual production of coal from some portion of the tract.2

In determining these facts, means of transportation cannot be taken into consideration as affecting the value of the coal shown to exist.3

That lands in the near vicinity, or even those directly adjoining, are shown to contain coal, is insufficient to establish the character of a tract upon which no coal has been developed."

Mere outcroppings or other surface indications will not, in the absence of proof of commercial value of the deposit, prevent the entry of such lands under the preemption or homestead laws.8

But it is not necessary to show actual development on each forty-acre subdivision," nor upon all parts of a forty-acre tract.10

When, however, a conflict arises between an agricultural and coal claimant, the character of the land to the extent of the entire conflict area is involved, and, necessarily, proofs of a more specific character would be required than in the case of an ex parte application to enter under the coal laws.

1 Mitchell v. Brown, 3 L. D. 65; Savage v. Boynton, 12 L. D. 612. Rucker v. Knisley, 14 L. D. 113.

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

In re Williams, 11 L. D. 462; Scott v. Sheldon, 15 L. D. 361.

Commrs. of Kings County v. Alexander, 5 L. D. 126; In re Archuleta,

15 Copp's L. O. 256.

See, also, Dughi v. Harkins, 2 L. D. 721.

'Frees v. State of Colorado, 22 L. D. 510.

8 Colorado Coal and Iron Co. v. United States, 123 U. S. 307.

Hamilton v. Anderson, 19 L. D. 168; McWilliams v. Green River Coal

Assn., 23 L. D. 127; Reed v. Nelson, 29 L. D. 615.

10 State of Montana v. Buley, 23 L. D. 116.

The rules governing hearings to establish the character of lands are found in "General Land Office Regula"tions," issued October 31, 1881.1

The discovery of coal in paying quantities on land embraced within a homestead claim precludes the completion of the entry; 2 but discovery after purchase, under commuted homestead entry, will not defeat the issuance of the patent.3

2497. Geographical scope of the coal-land laws.The system regulating the pre-emption and sale of coal lands has substantially the same geographical scope as the general mining laws. It is in practical operation wherever coal is found in the precious-metal-bearing states and territories, and in Arkansas, Mississippi, Louisiana, Florida, and in certain parts of Oklahoma." As heretofore noted, Alabama, Michigan, Minnesota, Wisconsin, Kansas, and Missouri' are excepted from the operation of the federal mining laws, except as to the location of salines."

6

8

The coal-land laws were extended to the district of Alaska by act of congress approved June 6, 1900.1o

11 L. D. 688. See Appendix.

'Harnish v. Wallace, 13 L. D. 427; Dickinson v. Capen, 14 L. D. 426. Arthur v. Earle, 21 L. D. 92.

• Ante, § 81.

Ante, § 81, note 1, pp. 96, 113.

For method of acquiring coal lands in Alabama, see Circ. Instructions, 10 Copp's L. O. 54; In re Robert Lalley, Id. 55; In re Harris, 28 L. D. 90. 'Ante, § 20.

1031 Stats. at Large, p. 658. See Circular, 30 L. D. 368, Appendix.

501. Who may enter coal lands.-Entries of coal lands may be made by individuals or associations of persons. In the case of an individual, he must be above the age of twenty-one years and a citizen of the United States, or he must have declared his intention to become such.1

At one time, the department held that married women could not make entry of this class of lands,2 but this construction of the law, which was manifestly erroneous, is no longer followed.

An association of persons, as the term is used in the coal-land laws, is uniformly construed by the department to include corporations; but each individual of such association, whether incorporated or not, must possess the requisite qualifications. The law expressly so provides. The ownership, by one member of an association seeking to enter coal lands, of interests in other lands claimed under the coal-land laws, disqualifies the entire association. The right to purchase coal lands can be exercised but once.5

1 Rev. Stats., § 2347.

In re Nichol, 15 Copp's L. O. 255.

8 Ante, § 224.

In re Hawes, 5 L. D. 224; Kerr v. Utah-Wyoming I. Co., 2 L. D. 727. In re Kimball, 3 Copp's L. O. 50; In re Eiseman, 10 L. D. 539; In re Dearden, 11 L. D. 351; In re Smith, 16 Copp's L. O. 112; In re Negus, 11 L. D. 32.

If an association of persons makes a coal entry embracing a less area than it might have applied for, such entry is a bar to a second one.1 Where a valid reason therefor exists, such as may be instanced by a case where the applicant was unable to complete an asserted right by reason of successful adverse claims to the land sought to be entered, or where the first filing was abandoned on account of the worthless character of the claim, the good faith of the entryman being apparent, the cancellation of his declaratory statement would be without prejudice to a second application for other lands.

The rule applies, generally speaking, to those who have perfected their entries, or when the failure to complete the entry is the result of their own neglect. The rule has no application to a case where one buys, and, prior to entry, sells a preferential right.

A coal entry may be made by one qualified person for the benefit of another," provided the latter is himself qualified and has not exhausted his privilege. An entry sought to be made by one for the benefit of a disqualified person, or for one who, being originally qualified, has previous exhausted his rights, or when made in the interest of a corporation or association of persons, some of whom are either disqualified or have once availed themselves of the privilege," is a fraud upon the govern

In re Kimball, 3 Copp's L. O. 50.

In re Eiseman, 10 L. D. 539; In re Dearden, 11 L. D. 351; Conner v. Terry, 15 L. D. 310.

In re Burrell, 29 L. D. 328.

In re Hutchings, 4 Copp's L. O. 142; In re John McMillan, 7 L. D. In re Smith, 16 Copp's L. O. 112.

181;

In re McConnell, 18 L. D. 414.

6 Lipscomb v. Nichols, 6 Colo. 290. See, also, Union Coal Co., 17 L. D. 351; In re Durango L. and C. Co., 18 L. D. 382; In re Allen, 8 L. D. 140. In re Adolph Peterson, 6 L. D. 371; Conner v. Terry, 15 L. D. 310. McGillicuddy v. Tompkins, 14 L. D. 633.

⚫ United States v. Trinidad Coal and C. Co., 137 U. S. 160, 11 Sup. Ct. Rep. 57.

ment, and may be annulled upon proper proceedings in that behalf. Contracts whereby such a result is sought to be accomplished are contrary to public policy, and therefore void.1

However, an entry by an association of persons, all of whom are qualified at the date of entry, is not vitiated by the fact that at some point of time previously thereto one or more of them was disqualified.2

502.

Different classes of entries.-Coal lands are disposed of:

(1) By ordinary private entry, under the provisions of section twenty-three hundred and forty-seven of the Revised Statutes;

(2) By pre-emption or preference right of purchase, under section twenty-three hundred and forty-eight.

The two classes of entries have the following features in common:

(A) The persons or associations must possess the same qualifications;

(B) The purchase price to be paid upon final entry is the same;

(c) Final entries may only be made upon surveyed lands. There can be no segregation of fractional parts; (D) The tracts applied for must be contiguous.*

503. Private entry under Revised Statutes, section twenty-three hundred and forty-seven. -The right to enter coal lands under section twenty-three hundred and

Johnson v. Leonard, 1 Wash. 564, 20 Pac. 591.

Kerr v. Utah-Wyoming Imp. Co., 2 L. D. 727; Kerr v. Carlton, 10 Copp's L. O. 255.

Mitchell v. Brown, 3 L. D. 65; In re Cameron, 10 L. D. 195; In re Lyon, 20 L. D. 556.

In re Masterson, 7 L. D. 172, S. C. on review, Id. 577; Kendall v. Hall, 12 L. D. 419.