but it is also impossible to initiate a location by trespass and have it valid, and both of these facts stand in the way of a valid location of minerals in railroad lands.

While mineral lands are excepted by the railroad land grant acts from the grants of sections in place, the railroad company is, of course, entitled to its day in court in the land department on the question of whether the land really is mineral. That right of the railroad company merely requires that notice be given to it in some sufficient way before the land department disposes of the land as mineral. The publication of notice of application for patent by a mineral land claimant in the manner required by statute is such sufficient notice; 95 but otherwise personal notice would seem to be required." The land department requires "prompt and appropriate notice" to the railroad's grantees."7 Grants of Lieu or Indemnity Land.

Lieu or indemnity lands, of course, cannot pass in præsenti. They depend upon deficiencies in the "in place" sections, and cannot be determined until those deficiencies are ascertained. As in the case of state indemnity lands, the title does not pass until after the lands have been selected and have been certified by the Secretary of the Interior. Homestead entries within indemnity limits, made in good faith prior to such selection by and certification to the railroad, will be given priority." Lands within the indemnity limits of a grant to a railroad do not pass, on the forfeiture of such grant, to a second railroad, although within the place limits of the grant which was made

See Hill v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Min. Co., 13 Nev. 442.

95 Northern Pac. R. Co. v. Cannon, 54 Fed. 252, 4 C. O. A. 303.
96 See McCloud v. Central Pac. R. Co., 29 Land Dec. Dep. Int. 27.
97 Instructions, 33 Land Dec. Dep. Int. 262.

98 SJOLI v. DRESCHEL, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311; Oregon & C. R. Co. v. United States, 189 U. S. 103, 23 Sup. Ct. 615, 47 L. Ed. 726; United States v. Missouri, K. & T. R. Co., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766; Sage v. Maxwell, 91 Minn. 527, 99 N. W. 42. The approval by the land department of lieu selections made in sections subject only to entry under homestead laws does not operate to vest title in the railroad company. Clark v. Herington, 186 U. S. 206, 22 Sup. Ct. 872, 46 L. Ed. 1128. The right of a railroad does not attach to any specific lands within the indemnity limits of its grant until selection, notwithstanding the loss on account of which indemnity might be taken is ascertained to be largely in excess of all land subject to indemnity selection. Oregon & C. R. Co., 36 Land Dec. Dep. Int. 349.

99 Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311; Hoyt v. Weyerhaeuser (C. C. A.) 161 Fed. 324; Osborn v. Froyseth (Minn.) 116 N. W. 1113. That the land may be entered as a homestead after the filing of the list of selections of indemnity land by the railroad, but prior to the approval

to the second railroad prior to the forfeiture of the grant to the first railroad, but, instead, become a part of the public land of the United States. 100

That lieu or indemnity lands must be nonmineral is as clear as that the "in place" sections must be so.101 The language of the joint resolution, that no act "granting lands to states or corporations to aid in the construction of roads or for other purposes * * shall be so construed as to embrace mineral lands," etc., leaves no room for doubt. The Classification of Railroad Lands.

By the act of February 26, 1895,102 Congress provided for commissioners to determine the character of railroad lands granted in Idaho and Montana. That act merely relates to the odd-numbered railroad sections; the character of the even-numbered sections, in which the railroad company are not interested, being involved only so far as they help fix the character of the odd-numbered sections.103 The commissioners have hearings and report their determinations to the land department, and their work is only final when approved by the Secretary of the Interior. Their return is not conclusive, and on a subsequent showing that land classified by them as mineral is really not mineral the land department may make such disposition of the land as is proper.1 104 The classification of land by the commissioners as mineral, and the final approval of such classification by the Secretary

of the list by the Secretary, is declared in Northern Pac. Ry. Co. v. Wass (Minn.) 116 N. W. 937. Bona fide settlers within indemnity limits prior to the definite location of the road will be protected, even though it afterwards appears that all the sections in such limits are needed to supply deficiencies. OREGON & C. R. CO. v. UNITED STATES, 189 U. S. 103, 23 Sup. Ct. 615, 47 L. Ed. 726. Or that the land was withdrawn without authority of law from homestead entry. Brandon v. Ard (U. S.) 29 Sup. Ct. 1, 53 L. Ed. 100 San Jose Land & Water Co. v. San Jose Ranch Co., 189 U. S. 177, 23 Sup. Ct. 487, 47 L. Ed. 765, and cases cited; Northern Lumber Co. v. O'Brien, 204 U. S. 190, 27 Sup. Ct. 249, 51 L. Ed. 438. See St. Paul, M. & M. R. Co. v. Donohue, 210 U. S. 21, 28 Sup. Ct. 600, 52 L. Ed. No one but the United States may forfeit the grant. Spokane & B. C. Ry. Co. v. Washington & G. N. Ry. Co. (Wash.) 95 Pac. 64, and cases cited.

101 Southern Pac. R. Co. v. Allen Gold Min. Co., 13 Land Dec. Dep. Int. 165. See Mullen v. United States, 118 U. S. 271, 6 Sup. Ct. 1041, 30 L. Ed. 170. 102 Chapter 131, 28 Stat. 683.

108 Instructions, 26 Land Dec. Dep. Int. 684. Since the act does not authorize the classification of lands in even-numbered sections, the fact that such lands are classified as mineral will not avail against the surveyor general's return of the land as nonmineral at the time of actual government survey. Northern Pacific Ry. Co. v. State of Idaho, 37 Land Dec. Dep. Int. (Advance Sheets) 68.

104 LYNCH v. UNITED STATES, 138 Fed. 535, 71 C. C. A. 59. See Holter v. Northern Pac. R. Co., 30 Land Dec. Dep. Int. 442.

COST.MIN.L.-6

of the Interior, is, in effect, however, a cancellation of a previous selection of such land by the railroad, and the latter can question the character of the land only for fraud in classification.105 An approved classification of lands under the provisions of the act will not be inquired into upon a protest filed subsequently to the time allowed in the act for the filing of protests, where the protest contains no competent allegations that there was such irregularity in the classification as to vitiate it.106

105 Luthye v. Northern Pac. R. Co., 29 Land Dec. Dep. Int. 675; Lamb v. Northern Pac. R. Co., 29 Land Dec. Dep. Int. 102.

106 Beveridge v. Northern Pac. Ry. Co., 36 Land Dec. Dep. Int. 40.

CHAPTER V.

THE RELATION BETWEEN MINERAL LANDS AND HOMESTEAD, TIMBER, AND DESERT ENTRIES.

Since the pre-emption laws were repealed by the act of March 3, 1891,1 the homestead laws have been the chief mode of acquiring title to nonmineral lands, though under the stone and timber act of June 3, 1878, as amended by the act of August 4, 1892, lands chiefly valuable for timber may also be acquired, and under the act of March 3, 1877, as amended by the act of March 3, 1891, desert lands may be taken up.

HOMESTEAD ENTRIES.

20. The issuance of a homestead patent for land is an authoritative adjudication by the land department that the land is nonmineral, and, subject to the right of the United States to have it set aside in equity for fraud, the patent passes the title to the land to the patentee, even though he knows the land to be mineral. It is only prior to the patent that the question of the mineral or nonmineral character of the land may be litigated in the land department.

The homestead act (Act May 20, 1862, c. 75, 12 Stat. 392) provides that "every person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States or who has filed his declaration of intention to become such, as required by the naturalization laws shall be entitled to enter onequarter section, or a less quantity, of unappropriated public lands, to be located in a body in conformity to the legal subdivisions of the public lands; but no person who is the proprietor of more than one hundred and sixty acres of land in any state or territory shall acquire any right under the homestead law. And every person owning and residing on land may, under the provisions of this section, enter

1 26 Stat. 1093, c. 559 (U. S. Comp. St. 1901, p. 1531).

2 20 Stat. 89, c. 151 (U. S. Comp. St. 1901, p. 1545).
3 27 Stat. 348, c. 375 (U. S. Comp. St. 1901, p. 1434).

4 19 Stat. 377, c. 107 (U. S. Comp. St. 1901, p. 1548).
5 26 Stat. 1095, c. 561 (U. S. Comp. 1901, p. 1535).

other land lying contiguous to his land, which shall not, with the land. so already owned and occupied, exceed in the aggregate one hundred and sixty acres.'

Under the federal statutes the land is entered by a sworn application, filed by the settler in the proper land office, describing the land and alleging the applicant's qualifications and good faith, and by a payment of the required fee. The entry can, of course, be made only where the land is at the time unappropriated. When the entry is made, the applicant receives a receipt for the fee paid; but no certificate is given him, or patent issued to him, for five years, unless after 14 months the entryman commutes his entry and in that way gets his patent."

Mineral Question Prior to Patent.

At the time of attempted entry the first question about minerals. may arise. The land may have been returned by the surveyor general as mineral, and in that case no entry can be made until the applicant "proves off" the mineral,* and if the land department on some former hearing decided that the land was mineral the applicant can prove off the mineral only by showing the result of subsequent investigations. If, however, the applicant proves off the mineral to the satisfaction of the land office and is allowed to make entry of the land as agricultural, the burden of proof thereafter rests on one asserting it to be mineral. No matter if the land is unquestionably mineral nor even if it be shown that a mining claim was located thereon at the time of the entry, the land will not be patented to the mineral claimant without a hearing in the land office and a cancellation of so much of the homestead entry as affects mineral land.1o Upon the hearing the question is simply: Is the tract more valuable as mineral land than as agricultural? 11 The land having been entered, and hence being prima facie nonmineral, the question then arises,

• Rev. St. U. S. § 2289, as amended by Act March 3, 1891, c. 561, § 5, 26 Stat. 1097 (U. S. Comp. St. 1901, p. 1388).

7 Rev. St. U. S. §§ 2291, 2301 (U. S. Comp. St. 1901, pp. 1390, 1406). See the land department's circular of "Suggestions to Homesteaders and Persons Desiring to Make Homestead Entries," approved March 9, 1908.

* U. S. Mining Regulations, Approved May 21, 1907, Rule 100.

8 Mackall v. Goodsell, 24 Land Dec. Dep. Int. 553; Leach v. Potter, Id. 573.

9 Majors v. Rinda, 24 Land Dec. Dep. Int. 277; Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac. 936.

10 Hooper v. Ferguson, 2 Land Dec. Dep. Int. 712; Elda Mining & Milling Co., 29 Land Dec. Dep. Int. 279.

11 Tinkham v. McCaffrey, 13 Land Dec. Dep. Int. 517; Long v. Isaksen, 23 Land Dec. Dep. Int. 353. See Aspen Consol. Min. Co. v. Williams, 23 Land Dec. Dep. Int. 34; United States v. Reed (C. C.) 28 Fed. 482. Compare Colo