VII Recognition by Congress of the precious metal mining industry on the public domain; land on which mining rights may be acquired; no mineral rights in land included in grants; Indian, military, and forest reservations; school and university lands; railroad grants; agricultural entries; timber and stone land, town sites; Mexican grants; aliens, minors, and married women. RECOGNITION BY CONGRESS OF THE PRECIOUS METAL MINING INDUSTRY HE first recognition by Congress of the great industry of THE mining for precious metals on the public domain was the Act of February 27, 1865.1 By this time mining had been carried on for fifteen years with a yield of $818,000,000 gold and $26,750,000 silver. During this period of non-action by Congress, mining litigation had been frequent in California and some of the other mining States, and the courts, in order to protect the miners in their rights, had formulated a presumption, arising out of this inaction of Congress, of a permission or license by the Government to the miner to occupy and work the mineral land belonging to the Nation.2 The next recognition by Congress of the rights of miners was the Act of July 4, 1866, which provided: "In all cases lands valuable for minerals shall be reserved from sale except as otherwise expressly directed by law." 3 These acts only recognized the possessory rights of the miner and withdrew mineral lands from sale; but no method was provided by which the miner could obtain absolute title to his 1 See Appendix. 2 Gold Hill, etc., Co. vs. Ish, 5 Ore., 104; Irwin vs. Phillips, 5 Calif., 140; Hoffman vs. Stone 7 Calif., 46; Tartar vs. Spring Creek, etc., Co., 5 Calif., 396; Sparrow vs. Strong, 3 Wallace, 97; Merced, etc., Co., vs. Freemont, 7 Calif., 317; Conger vs. Weaver, 6 Calif., 548; Hill, vs. King, 8 Calif., 337; McKeon vs. Bisbee, 9 Calif., 137; Partridge vs. McKinney, 10 Calif., 181; State vs. Moore, 12 Calif., 56; Curtis vs. Sutter, 15 Calif., 263; Hughes vs. Devlin, 23 Calif., 502. 3 R. S., sec. 2318. property such as the owner has in farm land. This was furnished by the Act of July 26, 1866, which gave a method of obtaining a patent to a claim containing "a vein or lode of quartz or other rock in place bearing gold, silver, cinnabar, or copper." This statute contained a specific grant of the right of exploration and occupancy of the mineral land of the public domain that previously had been only a "presumption" of the courts for the purpose of enabling the miner to assert his rights in a court of law whenever they were invaded. This law did not cover placers, which remained as before and were held only by possessory rights until the Act of July 9, 1870, which provided a method of securing title to such claims. All of these mining laws were revised and consolidated in the Act of May 10, 1872. This act is substantially preserved in the Revised Statutes and is given, together with all subsequent amendments, in the Appendix to the present work. The purpose of the United States statutes in relation to mining has been to provide a method by which mining rights in the public domain might be acquired, maintained, or forfeited, and by which also absolute title might be gained. The following is perhaps as good a classification of the various subjects of the body of law that has been created by these statutes and the decisions of the courts thereon, as can be made: 1. Upon what land mining rights may be acquired; qualifications of a locator; procedure to acquire such rights. 2. The nature and incidents of the rights acquired, their continuance or maintenance, their forfeiture and loss. 3. The process of obtaining absolute title. 4. Peculiar rights given by statute-extralateral provision, etc. LAND ON WHICH MINING RIGHTS MAY BE ACQUIRED The fundamental requisite for the acquirements of rights in land under the United States statutes is that it must be mineral land on the public domain of the United States in one of the following States: Arkansas, California, Oregon, Washington, Idaho, Montana, North Dakota, South Dakota, Colorado, Wyoming, Utah, Nevada, Florida, Mississippi, Louisiana, the Territories of Arizona and New Mexico, the District of Alaska, and the Philippine Islands. It must be noted, however, that the provisions of the law of 1872 and its amendments do not apply to the Philippines, which are governed by the Acts of 1902 and 1905, applying only to these insular possessions of the United States. As we have already noticed, the remaining States and Territories which contain public domain have been removed from the operation of the mining statutes by special laws enacted at various times. EXCEPTIONS RESERVATIONS, GRANTS, ETC. In the States and Territories to which the mining statutes apply, not all the public land is locatable under the statutes. If the land has been reserved from sale, or previously granted by some valid and subsisting grant, it is not open to location.* Indian, Military, and Forest Reservations. No valid locations can be made within an Indian reservation.5 Nor can a valid location be made upon a military reservation unless the latter has been abandoned and restored to the public domain. The same is true of tracts of land reserved for public parks such as the Yellowstone National Park." After the passage of the Act of March 3, 1891, authorizing the withdrawal of parts of the public domain from sale, entry, etc., for the creation of forest preserves, it was held that mining claims could not be located thereon.' But in 1898 Congress enacted that all mineral lands which may have been or may be shown to be such in forest reservations shall continue to be subject to location and entry as mining claims, notwithstanding the existence of such forest reservations.8 The subject of the effects of the various "grants" made by Congress on the locating of the land for mining purposes may be considered under the following heads, which include the most important. Davis vs. Weibbold, 139 U. S., 507; Faxon vs. Barnard, 2 McCrary, 44; Belk vs. Meagher, 104 U. S., 279; Deffeback vs. Hawke, 115 U. S., 392, U. S. vs. Iron Silver, etc., Co., 128 U. S., 673; Carey vs. N. P. Ry. Co., 15 L. D., 439; Mt. Diablo, etc., Co., vs. Callison, 5 Sawyer, 439; Chapman vs. Toy Long, 4 Sawyer, 28; Steel vs. St. Louis, etc., Co., 106 U. S., 447; Omar vs. Soper, 11 Colo., 380; Armstrong vs. Lower, 6 Colo., 393; Duprat vs. James, 65 Calif., 555; Morenhaut vs. Wilson, 52 Calif., 263; Taylor vs. Middleton, 67 Calif., 656; Hall vs. Arnott, 80 Calif., 348; Watervale, etc., Co., vs. Leach, 33 Pacif., 418; Iron Silver, etc., Co., vs. Mike, Co., 143 U. S., 394; Wheeler vs. Smith, 5 Wash., 704; Eilers vs. Boatman, 3 Utah, 159; Merrill vs. Dixon, 15 Nevada, 401; Golden Fleece, etc., Co., vs. Cable, etc., Co., 12 Nevada, 312; King vs. Edwards, 1 Mont., 235; Golden Terra, etc., Co. vs. Mahler, 4 Morr. M. Rep, 390. 5 Kendall vs. San Juan, etc., Co., 144 U. S., 658. 6 L. D., 552; 20 L. D., 32; 28 L. D., 172; U. S. vs. Gear, 3 How, 120; Cotton vs. U. S., 11 How, 229; Dugan vs. U. S., 3 Wheat, 181; Wilcox vs. Jackson, 13 Pet., 498. 7 U. S. vs. T. Y. G. H., etc. Co., 76 Fed., 693. 8 30 Statutes at Large, 34, 35, 36. School Lands. It has been the policy of Congress to reserve certain sections in each township from disposal and sale, and upon the organization of the States to grant such reserved land to the same for the maintenance of public schools. Since the organization of the Territory of Oregon the custom has been to reserve sections 16 and 36. Congress has also made other grants of land to certain States to be selected from the public domain for educational purposes, such as for the support of a university. In recent grants of this kind mineral lands are expressly reserved. The United States Supreme Court has laid down the doctrine. that mineral lands, known to be such when the grants took effect, did not pass to the States." As soon as the survey is completed and approved the grant attaches to sections 16 and 36, if they are not mineral in character or otherwise appropriated at the time. This is the time when the character of the lands must be determined: if they are then proved to be mineral in character they do not pass by the grant. If they are not known to be mineral a subsequent discovery of mineral does not defeat the title given by the grant.10 In order to come within the designation "known mineral land," the land must be known to contain enough mineral to justify the spending money for the purpose of extraction or mining of the same at that time."1 When the land is all surveyed at the time the State is admitted, the grant and the inquiry as to whether mineral or not takes place at that time. RAILROAD GRANTS No mining location can be made on railroad grants or reservations.12 As related to mineral land these grants may be separated into three classes: (1) grants of right-of-way; (2) grants of alternate sections within certain limits; and (3) grants of "indemnity" land within certain limits to replace alternate sections to which prior rights had attached depriving the railroad of the same. Right-of-way. The grant of a right-of-way was unconditional; and when the line of road was located, and map filed 9 Ivanhoe M. Co. vs. Keystone M. Co., 102 U. S., 167. 11 Davis vs. Weibbold, etc., 139 U. S., 507. 12 Borden vs. N. P. R. Y. Co., 154 U. S., 188. and approved, the title related back to the date of the grant and all mineral therein passed to the railroad company.13 Alternate Sections. In these the mineral land was reserved by Act of Congress. After some litigation and conflicting decisions by the lower courts it was finally settled by the decision in the case of Barden vs. Union Pacific R. R. Co., 154 U. S., 288, that the mineral character of the land might be ascertained and established at any time before patent was actually issued to the Railway Company, and that if its mineral character was so established the land became subject to location as mining claims. Of course if mineral is discovered after the issuance of patent to the Railway Company, this does not disturb the company's title to such land in the absence of fraud.14 Indemnity Land. — When a deficiency of land in the lands granted within the limits of the original grant has been ascertained, then other land within certain limits can be selected in lieu; but mineral land cannot be so selected.15 The grant does not attach until the selection is made, approved, and certified; and until this is done the Land Department retains jurisdiction to determine the character of the land, so that mining locations may be made thereon and patents issued therefor at any time prior to such final approval and certification.16 The greater number of grants to railroads contain provisions that the exception of mineral shall not include coal and iron land, so these, therefore, passed to the Railway Company. ENTRIES FOR AgriculturAL AND OTHER PURPOSES As Affecting MINING LOCATIONS Agricultural Entries. - During the period the mining statutes have been in operation agricultural entries have been made in one or more of the following ways: homesteads, preëmptions, desert lands, timber culture claims, and by "scrip" issued by authority of various Acts of Congress. The preemption and timber claim methods were repealed March 3, 1891. Homesteads. The applicant files his application in the local land office describing the land that he desires to enter. If the land is unappropriated and returned as non-mineral by the 13 St. Joseph R. R. Co. vs. Baldwin, 103 U S., 426. 14 Traphogen vs. Kirk, 77 P., 58; Barden vs. N. P. Ry. Co., 154 U. S., 288. 15 U. S. vs. Mullan, 10 Fed., 785; 119 U. S., 271. 16 Barney vs. R. R. Co., 117 U. S., 228; U. S. vs. M. K. & T. R. R. Co., 141 U. S., 358 |