can a mining location be made upon it? The answer to that question depends upon the answer to the questions: (1) What interest the claimant acquires by his entry? and (2) can the location be made. without its being initiated by a trespass?

The first question may arise where the homstead claimant enters land on which a valid subsisting location exists. In such case, says the land department, the entry does not pass to the homestead claimant any interest in the mining claim land.12 There is, in effect, an exception of the land from the entry. But the question may also arise where the claim is not located until after the entry. There, also, the land department treats the mineral land as excepted.13 "The fact that when the alleged mining claim was located the homestead entry of Currence was still of record and uncanceled did not of itself affect the validity of the location. No vested right to the lands had attached under the entry, and until such right should attach the lands belong to the United States, and, if mineral in character, are subject to location and purchase under the mining laws." 14 This ruling, though hard on the homestead claimant, finds some justification in the attitude of the United States Supreme Court toward homestead entries, which are not regarded as giving such vested rights as attach under the mining laws.15

For the answer to the second question, the initiation of a mining

rado Coal & Iron Co. v. United States, 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182.

At any time before final proof and payment is made on a homestead entry on lands in a district which is subject to the mining laws, a cancellation of the entry may be obtained by showing that the land is more valuable for mineral than for agricultural purposes. Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac. 936. The hearings are governed by Land Office Mining Regulations, Approved May 21, 1907, Rules 99 to 111. See Appendix. The decision of the land department that the land is mineral or that it is nonmineral is conclusive on the courts. Cragie v. Roberts (Cal. App.) 92 Pac. 97. 12 Manners Construction Co. v. Rees, 31 Land Dec. Dep. Int. 408. 13 Id.

14 Manners Construction Co. v. Rees, 31 Land Dec. Dep. Int. 408, 410. 15 Yosemite Valley Case (Hutchings v. Low) 15 Wall. (U. S.) 77, 21 L. Ed. 82. See Wagstaff v. Collins, 97 Fed. 3, 38 C. C. A. 19; Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231. Failure to make entry, of course, prevents rights of property from existing. Gonzales v. French, 164 U. S. 338, 17 Sup. Ct. 102, 41 L. Ed. 458; Camfield v. U. S., 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260.

"It appears to have been uniformly held by the federal courts that an entry [of a homestead] in the proper land office does not create any vested right in the entryman as against the United States, and that Congress may, by subsequent legislation, dispose of the land to any one notwithstanding such entry." Oregon Short Line R. Co. v. Quigley, 10 Idaho, 770, 80 Pac. 401, 403, and cases cited.

location by trespass, we must look in part to the solution of the first. If the mineral land is a true exception from the entry, and that seems to be the land department's view of the case, then a mineral claimant who keeps to excepted surface can no more be a trespasser than can the locator of a known lode in a placer who keeps on the strip 25 feet on each side of the vein. But it would certainly seem as if the land department is in error in treating any surface as excepted. The minerals may be excepted; but, unlike the case of known lodes in placers where a definite number of feet of surface is excepted by statute, no surface seems to be excepted from the homestead entry. So far as the courts are concerned, which cannot recognize a location of a lode apart from a surface,16 it seems clear that no mineral location on lands covered by a homestead entry can be recognized, unless it is made after the homestead entry has been canceled by the land department after notice and hearing.1 If, however, as seems to be the case, the land department permits a mining location to be made on a homestead entry in order to form the basis of a contest in the land department, a cancellation of the homestead entry would doubtless be held by the courts to inure to the benefit of the locator so favored by the land department; † but that question has not come up. In the case of a homestead entry, however, just as is true in the case of a placer location,18 it would doubtless be such a trespass to go upon the land to prospect for unknown lodes as to make the location thereby initiated void, even from the land department's point of view. "The fact that a certain tract of land is decided upon testimony to be mineral in character is by no means equivalent to an award of the land to a miner. In order to secure a patent for such land, he must proceed as in other cases, in accordance with the foregoing regulations." Mineral Question after Patent.

So much for the situation before patent. Where a homestead patent is issued for land, that is an authoritative adjudication by the land.

16 Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58, and cases cited. See Heil v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Mining Co., 13 Nev. 442.

17 Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac. 936; HEINE v. ROTH, 2 Alaska, 416; Steele v. Tanana Mines Ry. Co., 2 Alaska, 451 (decided on other grounds in 148 Fed. 678, 78 C. C. A. 412). Until the homestead entry is canceled, the mining claimant cannot be permitted to occupy the land jointly with the homesteader. Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac. 936, 940.

†That the land department would so regard it if the mineral claimant stayed with the claim, see Adams v. Polglase, 32 Land Dec. Dep. Int. 477, 33 Land Dec. Dep. Int. 30.

18 CLIPPER MIN. CO. v. ELI MINING & LAND CO., 194 U. S. 220, 24 Sup. Ct. 632, 48 L. Ed. 944.

Land Office Mining Regulations, approved May 21, 1907, Rule 111.

department that the land is nonmineral. If in fact the land is mineral, and was known to be so at the time of patent, the title nevertheless passes. The patent is for the whole quarter section or other survey subdivision, and while it stands must on principle cover minerals, known as well as unknown.19 Where known mineral land has been entered as agricultural, the patent may be set aside in equity at the suit of the United States, 20 and, if there was a pre-existing valid mining location on the ground patented to the homestead settler, the patentee may doubtless be declared a trustee of the mining claim ground for the benefit of the mining claim owner at the suit of the latter.21 Any veins or lodes unknown before patent, but discovered after patent, belong, of course, to the patentee. "In cases of homestead, pre-emption, or townsite entries, the law excludes mineral lands; but it was never doubted that the title, once passed, was free from all conditions of subsequent discoveries of mineral." 22

TIMBER AND STONE LAND ENTRIES.

21. To timber entries under the timber and stone lands act the same rules about minerals apply as do to homestead entries, though when stone entries are made under that act only gold, silver, cinnabar, copper, and coal deposits are excepted from the entries.

Under the timber and stone lands act, the same doctrines govern as to minerals that apply to homestead entries, except that, when stone lands are acquired under the act, only lands containing gold, silver, cinnabar, copper, or coal are excepted. Building stone lands may still be entered under this act, although the building stone act of August 4, 1892,28 allows them to be entered as placer claims.24 Until the final certificate of purchase is issued to a timber applicant,

19 STANDARD QUICKSILVER CO. v. HABISHAW, 132 Cal. 115, 64 Pac. 113. But see, contra, as to pre-emption, Gold Hill Quartz Mining Co. v. Ish, 5 Or. 104.

20 Colorado Coal & Iron Co. v. U. S., 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182.

21 See Salmon v. Symonds, 30 Cal. 301.

22 SHAW v. KELLOGG, 170 U. S. 312, 332, 18 Sup. Ct. 632, 42 L. Ed. 1050; Kirby v. Potter, 138 Cal. 686, 72 Pac. 338.

23 27 Stat. 348, c. 375 (U. S. Comp. St. 1901, p. 1434).

24 Forsythe v. Weingart, 27 Land Dec. Dep. Int. 680. Lands are subject to entry under the timber and stone act so long as they are chiefly valuable for stone, even though under existing conditions the stone may not be marketable at a profit. Narver v. Eastman, 34 Land Dec. Dep. Int. 123. Under this act one who takes granite from the public domain and shapes it for a tombstone becomes the exclusive owner of it, although he does not acquire the exclusive

the lands, if mineral, are subject to exploration and purchase under the mining laws;** but after the certificate issues to the timber land applicant a subsequent discovery of mineral inures to the purchaser of the lands.25 One who fraudulently obtains a patent under the timber act to land on which another has a valid mining location will be made to hold the legal title in trust for that other.ft

DESERT ENTRIES.

22. Desert entries are governed by the same rules as to minerals as apply to homestead entries.

If mineral deposits are found in desert land entries, the same rules apply as govern in the case of homestead entries.20

right to the land from which it is taken. Sullivan v. Schultz, 22 Mont. 541, 57 Pac. 279.

** The surveyor general's return that the land is timber throws the burden of proof of its mineral character upon the person asserting it against a claimant under the timber and stone act. Purtle v. Steffee, 31 Land Dec. Dep. Int. 400. On the right to take timber, see Gallagher v. Gray, 35 Land Dec. Dep. Int. 90.

25 Chormicle v. Hiller, 26 Land Dec. Dep. Int. 9. Public land covered by a heavy growth of timber, which constitutes its chief value, is held subject to entry under the timber and stone act, although it would be fit for cultivation if the timber were removed. Thayer v. Spratt, 189 U. S. 346, 23 Sup. Ct. 576, 47 L. Ed. 845.

†† MERY v. BRODT, 121 Cal. 332, 53 Pac. 818.

26 "Desert land claimants will rarely come in conflict with mining claimants. Of course, beds of gypsum, borax, nitrate, and carbonate of soda are found in the desert regions; but their mineral character is generally so obvious that no controversy is likely to arise. It would be much cheaper and more expeditious for a claimant to enter these classes of lands under the placer laws than to attempt to acquire title under the onerous provisions of the desert land law." 1 Lindley on Mines (2d Ed.) § 212.

Those parts of the federal public domain which the national government has not parted with, but which for various public purposes it has withdrawn from the operation of the mining and other land laws, may be grouped under the title of "Land Reservations," and, so grouped, are enumerated as follows: (1) Indian reservations; (2) military reservations; (3) national parks; (4) forest reserves; (5) reservoir sites.

INDIAN RESERVATIONS.

23. Mining locations, properly made prior to the creation of an Indian reservation, are upheld; but mineral lands within an existing reservation are not subject to location, except under acts specifically providing for mining locations on given reservations. After an Indian reservation has been thrown open again, mining locations may, of course, be made.

Under executive orders reserving lands for Indian occupancy, our Indian reservations have been created. The title which the Indians have to the lands thus reserved is one of occupancy only, unless allotments are made which confer greater rights, and, where the United States makes the Indian reservation, the fee is in the United States, subject to this right of occupancy. Since the title is in the United States, the federal government has the power, should it see fit, to pass title to lands in the Indian reservation without the consent of the Indians. But no presumption will be indulged that the federal government intended to exercise that power, and, even if it does actually exercise it, the rights of occupancy of the Indians are protected.2 It is well settled that, after an Indian reservation has been established by the federal government, the land embraced within the reservation

1 United States v. Alaska Packers' Ass'n (C. C.) 79 Fed. 152.

2 Buttz v. Northern Pac. R. Co., 119 U. S. 55, 7 Sup. Ct. 100, 30 L. Ed. 330. United States v. Moore (C. C. A.) 161 Fed. 513.