use. It also includes rock used for building material, etc., coal, petroleum, and natural gas. Kaolin, brick clay, slate, etc., have not been passed upon by the American courts; but on the authority of the English cases, and the decisions of the land departments hereinafter mentioned, the probabilities preponderate that the courts will hold them to be included under the term "mineral" the same as granite, marble, etc.

The first decision that I have found in which a definition of the word "ore" is given is Marvel vs. Merritt, 116 U. S., 11, in which the court adopts the following from Webster: "Ore, the compound of a metal and some other substance, as oxygen, sulphur, or arsenic, called its mineralizer, by which its properties are disguised or lost." This definition would apply to metallic minerals, a subdivision of the general term "minerals," but leaves out of account entirely the distinguishing characteristic of an ore as commonly understood; that is, matter containing enough mineral or metal to pay for mining the same and extracting therefrom such mineral or metal. In Doster vs. Friedensville Zinc Co., 140 Pa. St., 147 (151), the fact is mentioned that

"Both in common and scientific parlance there is a difference between the terms, minerals' or 'mineral and fossil substances' and 'ores.' The term minerals, though frequently applied to substances containing metals, in its proper sense includes all fossil bodies or matters dug out of mines." The decision contains no more explicit definition of the term "ore"; but the implication is that it was regarded as applying to metallic minerals without further qualification. In Armstrong vs. Lake Champlain Granite Co., 147 N. Y., 495 (501), the term is defined as follows: "Ore: designates a compound of metal and other substances." Perhaps the best scientific and commercial definition that can be given of the word "ore" is that it is a mineral or mineralized rock that can be profitably mined. By this definition, however, a mineral that would be included under the term ore one day might, by a fluctuation of the metal or mineral market, be excluded the next day; and it is probable that it is the recognition of the uncertain, shifting value of the term that has been the cause of its use in legal instruments only in connection with the more fixed term "mineral," and the reason also that the courts have devoted their .ttention, when the question of definition arose, solely to the comparatively fixed and stable term "minerals."

II. UNDER UNITED STATES LAND AND MINING LAWS

Proceeding to the decisions under the United States land laws, it is first to be noted that the statutes of the United States, sec. 2318, chapter 6, revised statutes, provide

"In all cases lands valuable for minerals shall be reserved from sale except as otherwise expressly provided by law."

and sec. 2319.

"All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase. . ."

Under this important statute the question has often arisen as to what is a mineral and what is mineral land within the meaning of the statute.

The definition of a mineral by Commissioner Drummond of the General Land Office, in a general circular of July 15, 1873, has frequently been quoted since. This is:

"That whatever is recognized as a mineral by a standard authority on the subject, where the same is found in quantity and quality to render the land sought to be patented more valuable on this account than for purposes of agriculture, should be figured by this office as coming within the purview of the mining act of May 10, 1872."

The Act of 1872 referred to in this definition contains the statutory provisions quoted above, which were afterward incorporated into the revised statutes.

On most of the questions connected with the interpretation of the land laws, and particularly concerning the character of the land, the decision of the Land Department is final, so that its interpretations have the effect of law, and I present a synopsis of those that relate to minerals and mineral lands.

Land containing gold in sufficient quantities to justify men. of ordinary prudence in the expenditure of money and labor in mining development must be regarded as mineral in character, 18 but gold in non-paying quantity will not defeat the agricultural character of the land. 19

For land containing limestone to fall within the mineral laws

18 23 L. D., 34 (L. D. is the abbreviation for Land Decisions, a series of volumes containing the decisions of the Interior Department on questions involving public lands).

197 L. D., 424.

it must affirmatively appear that it is more valuable for the limestone than for agricultural purposes.20

Guano is held in a decision of the land department to be a mineral.21 The decision says:

...

"Guano is the excrement of sea birds, accumulating during a long period of years into beds of varying thickness. It is a phosphate deposit, and is classed by Dana in his 'System of Mineralogy' among the apatite group or minerals. . . . Chemical analysis of the Gunison Island phosphate shows that its composition is substantially the same as that of the phosphate deposits of Florida. In the recent case of the Florida Central and Peninsula Railroad Company (26 L. D., 600), the department held, relative to Florida phosphate lands, that land valuable for deposits of phosphates are mineral lands within the intent and meaning of the laws relating to the disposal of the public domain. It must be said, therefore, that guano is a mineral, and that lands valuable for deposits of guano are within the meaning of the mining and other laws of the United States."

The question arose in connection with certain lands on Gunison Island in the Great Salt Lake, in Utah, which had been located as placer deposits. The decision upheld the rights of the locators under the mining laws against other claimants on the grounds, stated above, that guano is a mineral.

"Under all authorities gypsum is a mineral." 21a

"It was early determined by the Department that the Act of May 10, 1872, which describes certain land containing mineral deposits was applicable to land containing deposits of borax, carbonate and nitrate of soda, sulphur, alum, and asphalt; and I believe that, from the passage of the law until the present time, the definition of the term 'valuable mineral deposits' has been held to include the minerals and alkaline substances." 22

"Lands containing mineral springs not of a saline character, are subject to sale under the acts relating to the sale of mineral lands."' 23

Under the land laws of the United States petroleum has been recognized as a mineral within the meaning of such laws, both by the courts and by the decisions of the Land Department. In the case of Gird vs. California Oil Company, 60 Fed., 531, the litigation arose in a mining district organized as an oil district, called the Little Sespe petroleum mining district. In the opinion in this case the court says:

"It is undoubtedly true that petroleum, with its natural gas, unlike other 23 L. D. 34. 221 L. D., 561.

20 22 L. D., 353; 30 L. D., 475.

21

27 L. D., 95.

231 L. D., 562; 9 Copp's Land Owner, 230.

210

mineral deposits, is movable. But, as the normal condition of petroleum is one of repose, and not motion, it belongs to the rock in which it is imbeded."

The leading case in the courts on the question of what constitutes mineral lands under the above-cited statute is Davis's Administrator vs. Weibbold, 139 U. S., 507. This was a case of a contest between holders of a mining patent and a title acquired under the town site act, and in the case the whole question of mineral lands is fully discussed by the United States Supreme Court, the final authority in such cases. The court says:

"When the entry of the town site was had, and the patent issued, and the sale was made to the defendant of the lots held by him, it was not known - at least it does not appear that it was known - that there were any valuable mineral lands within the town site, and the important question is whether in the absence of this knowledge the defendant can be deprived under the laws of the United States of the premises purchased and occupied by him because of a subsequent discovery of minerals in them and the issue of a patent to the discoverer.

"After much consideration the answer must be in the negative. It is true the language of the revised statutes touching the acquisition of title to mineral lands within the limits of town sites is very broad. The declaration that 'no title shall be acquired' under the provisions relating to such town sites, and the sale of lands therein 'to any mine of gold, silver, cinnabar or copper; or to any valid mining claim or possession held under existing laws,' would seem on first impression to constitute a reservation of such mines in the land sold, and of mining claims on them, to the United States; but such is not the necessary meaning of the terms used; in strictness they import only that the provisions by which the title to the land in such town sites is transferred shall not be the means of passing a title also to mines of gold, silver, cinnabar or copper in the land, or to valid mining claims or possessions thereon. They are to be read in connection with the clause protecting existing rights to mineral veins; and with the qualification uniformly accompanying exceptions in acts of Congress of mineral lands from grant or sale. Thus read they must be held, we think, merely to prohibit the passage of title under the provisions of town site laws to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the town-site patent, and to mining claims and mining possessions, in respect to which such proceedings have been taken under the law or the custom of miners as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The exceptions of mineral land from pre-emption and settlement and from grant to States for universities and schools, or the construction of public buildings, and in aid of railroads and other works of internal improvements, are not held to exclude all land in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so

at the date of the grant. There are vast tracts of country in the mining states which contain precious metal in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term mineral in the sense of this statute is applicable

The only decisions of the Land Department directly on the subject, hold 24 that clay is not locatable as a mineral, on the ground, that being everywhere present in the soil, in greater or less quantity, to permit it to be located as mineral land would allow all agricultural land to be located under the guise of mineral claims. It is claimed 25 that this decision is practically overruled by a later one of the Department.26

Other minerals which have been held by the decisions of the Land Department to come within the United States laws relating to mineral land are: albertite, gilsonite, alum, amygdaloid bands, agate, fahl-bands, garnet, graphite, lithographic stone, mica, opal, slate, tin, turquoise, amber, and wax.

Land containing sandstone valuable for building purposes, and more valuable on that account than for agricultural purposes, is mineral land within the mining statutes.27 Land chiefly valuable for marble and slate contained therein is mineral land within the meaning of the statute and cannot be selected by a railroad as part of an indemnity grant,28 and the same is true of land chiefly valuable for asphaltum,29 and for oil and gypsum.30

Land not shown to contain mineral deposits in paying quantities of substances for which mining operations are usually conducted, but which appears to be desired by the parties attempting to secure title thereto chiefly on account of the fact that it contains the entrance to a cave in which are found crystals, stalagmites, stalactites, geodes, etc., which are sold as natural curiosities is not mineral land within the meaning of the mining laws.31

24 Jordan vs. Idaho Aluminum M. & M. Company, 20 L. D., 500; Dunluce Placer Mine, 6 L D. 761; King vs. Bradford, 31 L. D., 108.

25 Snyder on Mines, sec., 144.

26 Pacific Coast Marble Company vs. Northern Pacific Ry. Company, 25 L. D., 233.

27 Brendatte vs. Northern Pacific Ry. Co., 29 L. D., 248; Hayden vs. Jamison, 26 L. D., 373

28 Schrimpf et al. vs. Northern Pacific R. R. Co. et al., 29 L. D., 327.

29 Tulare Oil and M. Co. vs. Southern Pacific R. R. Co., 29 L. D., 269.

30 McQuiddy et al. vs. State of California, 29 L. D., 181.

31 South Dakota vs. McDonald, 30 L. D., 357.