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valuable for mining than for agricultural | purposes. Creswell M. Co. v. Johnson, 8 L. D. 440.

146. "To constitute the exemption contemplated by the pre-emption act under the head of 'known mines,' there should be upon the land ascertained coal deposits of such an extent and value as to make the land more valuable to be worked as a coal mine, under the conditions existing at the time, than for merely agricultural purposes. * * A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may be come profitable to work the veins as mines, cannot affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale. If upon the premises at that time there were not 'known mines,' capable of being profitably worked for their product, so as to make the land more valu- | able for mining than for agriculture, a title to them acquired under the pre-emption act cannot be successfully assailed." Colorado Coal & Iron Co. v. United States, 123 U. S.

807.

147. No title from the United States to land known at the time of sale to be valuable for its minerals can be obtained under the pre-emption or homestead or the town site laws, or in any other way than as prescribed by the laws, especially authorizing the sale of such lands, except in the States of Michigan, Wisconsin, Minnesota, Missouri and Kansas. Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408.,

150. Though land, to be excepted from a pre-emption entry as mineral, must have been known to be such at date of pre-emption entry (Harnish v. Wallace, 13 L. D. 108), it need not necessarily have been known to the pre-emption entryman if its mineral character was a matter or general knowledge. Tinkham v. McCaffrey, 13 L. D. 517.

151. As the pre-emption cash entry was made June 17, 1885, and the entryman disposed of the land prior to March 1, 1888, and the protest that the tract contains gold was not filed until after March 3, 1891, the motion for a hearing is denied and the protest is dismissed. John F. Delaney, 18 C. L. O. 72.

152. A contestant against a pre-emption entry who alleges the land to have been known to be mineral at date of pre-emption entry has the burden of proving that it was more valuable for mining than for agricultural purposes. Tinkham v. McCaffrey, 13 L. D. 517.

153. To be excepted from a pre-emption entry as mineral, land must be known to be such at date of the agricultural entry. A discovery of mineral after pre-emption entry of the land would not defeat the pre-emption entry. Harnish v. Wallace, 13 L. D. 108.

154. The known character of land at the date of final homestead entry determines whether or not it should be excluded from the homestead claim because of its mineral character, the discovery of mineral subsequent to such final entry being immaterial. Rea v. Stephenson, 15 L. D. 37.

155. In view of the provisions of the act of March 3, 1891, a motion to suspend a preemption cash entry, in view of recent discov

148. To be reserved from entry under the agricultural land laws and from patent is-ery of valuable minerals in the land involved, is denied. United States v. Lendrecie, 18 C. L. O. 65.

sued under said laws, land must have been known at the time of sale (entry) to be valuable for its minerals. A discovery of its mineral character subsequent to that date cannot affect the title. Deffeback v. Hawke, 115

U. S. 392.

149. To be excepted from an agricultural patent land must have been known to be more valuable for mineral than for agricultural purposes at date of agricultural entry. Development after entry is immaterial. United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334; S. C., 3 Wall. 304; Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920.

156. When mineral is discovered on land after the tract has been embraced in a homestead entry, only twenty-five feet on each side of a vein can be embraced in a mining claim, unless, for the purpose of saving the expense of a segregation survey, the homestead claimant shall allow ten acres or twenty acres to be embraced thereby. Ryan v. Buivert, 14 C. L. O. 283.

157. Land, to be excepted from an agricultural entry as mineral, must be shown to be such as a present fact. Scott v. Sheldon, 15 L. D. 361.

158. The discovery of the mineral char- practical way, and with the least injury to acter of land covered by a homestead claim, the occupying claimant. McClintock v. Bryat any time prior to final entry, will defeat | den, 5 Cal. 97 (1855), 63 Am. Dec. 87; Clark v. the same. Jones v. Driver, 14 L. D. 514. Duval, 15 Cal. 85 (1859-60).

159. A discovery of the mineral character of land embraced in an original homestead entry will defeat the entry. Dickinson v. Capen, 14 L. D. 426.

160. The character of land (whether mineral or non-mineral) embraced in a homestead claim may be questioned up to the date of final entry. A discovery of its mineral character between submission of defective final

proof and date of final entry will defeat the homestead claim. Spratt v. Edwards, 15 L. D.

290.

161. The rights of an agricultural claimant will not be affected by a discovery of mineral after final agricultural entry. Arthur v. Earle, 21 L. D. 92.

167. Open and notorious possession for mining is sufficient to charge an applicant for agricultural patent with notice of the mineral character of the land, and to bring such land within the description of "known mineral deposits." Gold Hill Qtz. M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635.

168. "When an application to enter agricultural land is made, if the locators of min

ing claims on the land have any objections, they must be vigilant in presenting them. The rules and regulations provide ample means for this purpose, and if the remedies are not pursued, the mineral claimants will not be heard to complain." Departmental decision of March 11, 1896, In re Caribou Lode.

162. Mineral land, to be excepted from an 169. Lands in Florida claimed prior to agricultural patent, must have been known April 1, 1890, under the homestead or preto be such at date of the agricultural claim-emption laws, and not known to be valuable ant's entry and payment for the land. Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348.

163. If a lode is not known at date of agricultural entry, but is subsequently discovered and located, the claimant may not follow it on its dip under the agricultural claim. Amador-Medean G. M. Co. v. South Spring Hill G. M. Co., 13 Sawy. 523; 36 Fed. Rep. 668.

164. A mineral application should not be received for land covered by a homestead entry, but, upon its tender, a hearing should be ordered to determine the character of the land. (In this case the erroneously filed application was allowed to stand pending such a hearing.) Hooper v. Ferguson, 2 L. D. 712; Cleghorn v. Bird, 4 L. D. 478.

165. A miner who enters upon land in the possession of another as agricultural must justify his entry by showing that the land is public land, that it contains minerals, and that he enters for the bona fide purpose of mining. Such justification must be pleaded affirmatively in the answer, with all the requisite averments to show a right under the statute or by law to enter. Lentz v. Victor, 17 Cal. 271; 12 Mor. Min. Rep. 211.

166. An agricultural settler upon mineral lands settles subject to the right of miners. Miners may extract minerals in the most

for phosphate deposits at date of such claim, may be entered under such laws notwithstanding a subsequent discovery of such deposits. (Act of Oct. 1, 1890, 26 Stat. 663.) Gary v. Todd, 18 L. D. 58.

11. Grants.

(See GRANT, p. 364)

170. "The policy of Congress as expressed in its numerous grants of public lands to aid in the construction of railroads has always been to exclude the mineral lands from them, and reserve them for special disposition, as seen in the following acts among others: Acts of July 1, 1862, C. 120, 12 Stat., 489, and of July 2, 1864, C. 216, 13 Stat., 356, making grants to the Union and Central Pacific Companies; Act of July 4, 1866, C. 165, 14 Stat., 83, making a grant to the Iron Mountain Railroad Company; Act of July 13, 1866, C. 182, 14 Stat., 94, road; Act of July 25, 1866, C. 242, 14 Stat., 239, making a grant to the Placerville, etc., Railmaking a grant to the California and Oregon Railroad, sections 2 and 10; Act of July 27, 1866, C. 278, 14 Stat., 292, making a grant to the Atlantic and Pacific Railroad and to the Southern Pacific Railroad; Act of March 2, 1867, C. 189, 14 Stat., 548, making a grant to the Stockton and Copperopolis Railroad; Act of March 3, 1871, C. 122, 16 Stat., 573, making

a grant to the Texas Pacific Railroad." Barden v. N. P. R. R. Co., 154 U. S. 288.

171. Where application is made for a lode claim lying partly within and partly without an odd-numbered section within the grant to the Northern Pacific Railroad Company, and the discovery is situate upon the latter portion, a hearing will be ordered to determine the question of the mineral or non-mineral character of the former portion. Departmental decision of Sept. 23, 1892, In re Zero Lode.

with respect to their mineral or non-mineral character does not suspend the authority of the Land Department to pass upon pending cases involving that question, nor does it withdraw such lands from appropriation and entry. Sweeney v. Northern Pacific R. R. Co., 21 L. D. 65.

177. A State admitted before the survey of lands is entitled to sections 16 and 36 under its school grants, if they were not known to be mineral at date of the approval of the survey, and a discovery of mineral thereon subsequently will not defeat the right of the State. (The State acquires no rights, however, by an irregular survey which is approved and thereafter suspended.) Vir

172. If land within the limits of the grant to the Northern Pacific Railroad Company (from which all minerals other than coal and iron were excepted) is discovered to be mineral in character at any time before the issu-ginia Lode, 7 L. D. 459; J. Dartt, 5 C. L. O. ance of patent therefor to the company, it is excepted from the grant. Barden v. N. P. R. R. Co., 154 U. S. 288. (Citing and approving C. P. R. R. Co. v. Valentine, 11 L. D. 238-strong dissenting opinion.)

173. The discovery of the mineral character of land at any time prior to issuance of patent therefor under a grant excepting mineral land will exempt the land from the operation of the grant. Central Pacific R. R. Co. v. Valentine, 11 L. D. 238; North Star M. Co. v. Central Pacific R. R. Co., 12 L. D. 608; Southern Pacific R. R. Co. v. Allen G. M. Co., 13 L. D. 165; Northern Pacific R. R. Co. v. Champion Cons. M. Co., 14 L. D. 699; O'Conner v. Northern Pacific R. R. Co., 15 L. D. 247; Winscott v. Northern Pacific R. R. Co., 17 L. D. 274; Northern Pacific R. R. Co. v. Marshall, 17 L. D. 545.

174. Lands not known to be mineral in character at the date of issuance of patent therefor to a railroad company pass by the patent, even though the grant to the company excluded mineral land. Samuel W. Spong, 5 L. D. 193.

175. To be excepted from a railroad grant, land must have been known to be such at date of filing of map of general route. Francoeur v. Newhouse, 40 Fed. Rep. 618; 43 Fed. Rep. 238; Valentine v. Valentine, 47 Fed. Rep. 597. Contra, Central Pacific R. R. Co. v. Valentine, 11 L. D. 238; Barden v. Northern Pacific R. R. Co., 154 U. S. 288.

176. The act of February 26, 1895, providing for the classification of lands within the grant to the Northern Pacific Railroad Company (in the States of Idaho and Montana)

178; Town of Silver Cliff v. State of Colorado, 6 C. L. O. 152; State of Colorado, 6 L. D. 412; State of Colorado, 7 L. D. 490.

178. The right of a State under a school grant attaches, as to non- mineral lands previously surveyed, at date of the admission of the State. As to non-mineral lands surveyed subsequent to the admission of the State, the right attaches at date of approval of the survey. Warren v. State of Colorado, 14 L. D. 681.

179. Land returned by the United States Surveyor General as mineral does not pass to a State under a school land grant. Giovanni Le Franchi, 3 L. D. 229.

180. The mineral or non-mineral character of land in a school section (surveyed before the admission of the State), as known at the date of the admission of the State, determines whether or not it passed to the State under its grant. Boulder and Buffalo M. Co., 7 L. D. 54.

181. If land is known to be valuable for mineral at date of the admission of a State, it cannot pass to the State under its school grant. State of Washington v. McBride, 18 L. D. 199.

182. A grant of land for school purposes to the State does not pass known mineral lands, even though mineral lands were not expressly excepted from the grant. Keystone Lode & Mill Site v. Nevada, 15 L. D. 259.

183. Where a grant of land is made to a State after its admission, the mineral or nonmineral character at date of the subsequent survey thereof determines whether or not it passed to the State under the grant. Pereira v. Jacks, 15 L. D. 273. .

184. To be excepted from a grant of school | agricultural, and there is no reservation in lands to a State, land must have been known the law except a general one of mineral, and to be valuable for mineral, as a fact, at the none in the patent, the patent is a conclusive date of the approval of the survey thereof, | adjudication by the government that the when the State was admitted prior to such land is agricultural, and a court may not survey. Frees v. State of Colorado, 22 L. D. thereafter reopen collaterally the question as to the character of the land. Gale v. Best, 78 Cal. 235.

510.

185. One who applies for patent for a lode claim situate in a school section may be allowed to show that the land was known to be mineral in character at the date of the admission of the State, and hence excepted from the grant to the State. Fleetwood Lode, 12 L. D. 604.

186. If lands claimed by a State under the grant excepting mineral lands are discovered to be mineral before certification to the State, they do not pass under the grant. State of California, 7 L. D. 490. (Contrary to other Departmental decisions, and expressly overruled in case of Abraham L. Miner v. State of California, 9 L. D. 408.)

187. Under a grant of school lands, "The State's title vests, if at all, at the date of the completion of the survey. Cooper v. Roberts, 18 How. 173; Virginia Lode, 7 L. D. 459. And, if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not divest the title which had already passed." Abraham L. Miner v. State of California, 9 L. D. 408.

188. Land returned as mineral in character is not subject to selection by a State as school indemnity land until the return has been overcome by testimony submitted after publication of notice, under paragraph 110 of the Mining Circular, as amended July 2, 1894. (19 L. D. 21.) State of California v. United States, 22 L. D. 402.

12. Patent.

(See PATENT, p. 259.)

189. If patent is secured under the placer mining laws for land not containing any placer deposits, for the purpose of securing title to the timber thereon, the United States may maintain a suit to vacate such patent for fraud in its procurement. United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568.

190. When a patent issues under a law which provides for the disposal of land as

|

191. To warrant the vacation of a patent issued for mineral land under the agricultural land laws, the misrepresentation as to the character of the land must have been falsely and fraudulently made. A mistake as to the character of the land will not cause the vaca

tion of the patent on the ground of fraud. United States v. Iron Silver M. Co., 24 Fed. Rep. 568. See 128 U. S. 673.

192. A patent issued under the agricultural laws for land known to be mineral will be vacated upon suit by the United States. United States v. Culver, 52 Fed. Rep. 81.

193. A mineral patent renders res adjudicata, so far as the Land Department is concerned, the fact that the land was known to be mineral. Blackmore v. Reilly, 17 Pac. Rep. 72.

194. A patent to a railroad company is not conclusive evidence that the land is nonmineral in character. The party claiming under subsequent mining patent may show that the land is mineral, and, upon such showing being made, his title will be declared quieted. Chicago Quartz Mine v. Oliver, 75 Cal. 194.

195. After patent has issued for a town site, a miner may not locate a claim inside the patented limits and then attack the validity of the town site patent on the ground

that the land located was known to be mineral at date of the town site entry. The patent must be attacked directly if at all. Carter v. Thompson, 65 Fed. Rep. 329.

196. A patent to a railway company will be set aside if the ground was known at time of patenting to be mineral in character. McLaughlin v. United States, 107 U. S. 526; West. Pacific R. R. Co. v. United States, 108 U. S. 510.

197. If land known to be valuable for mineral is patented to a railroad company under a grant excepting mineral lands, the United States has such an interest in the matter as would warrant the Secretary of the Interior in recommending suit to vacate

the patent. Bullock v. Central Pacific R. R. Co., 11 L. D. 590.

198. When the complaint in an action to annul a patent alleged in substance that no discovery had been made, and the evidence is conflicting, proof that the claim was considered valuable for mining purposes was held sufficient, and the patentees were not obliged to show that there was a reasonable probability of the claim becoming a source of profit to constitute a mine within the meaning of the statute. United States v. King, 9 Mont. 75; 22 Pac. Rep. 498.

204. Where an agricultural entry is shown to embrace a valid mining claim, the agricultural claimant must have a survey made at his expense, under the direction of the United States Surveyor General, segregating the mineral from the agricultural land. Darragh v. Holdman, 11 L. D. 409.

205. Where it is alleged that land covered by an agricultural claim contains coal, the inquiry should be whether any forty-acre subdivision taken as an entirety is more valuable for coal than for agricultural purposes. A part of such subdivision may not be segregated as valuable for coal Mitchell v. Brown, 3 L. D. 65.

199. Where, by the terms of a patent, mineral lands are excluded from the grant, it is competent for the party claiming adversely 206. No paying mines having been develto the patentee to show that the land in dis-oped on the land prior to the homestead entry pute is mineral in character, and therefore excepted from the operation of the patent. McLaughlin v. Powell, 50 Cal. 64; 10 Mor. Min. Rep. 424.

of Johnson, and the same having been returned as non-mineral by the United States Deputy Surveyor, the burden of proof is on the mineral protestants, who have failed in this case to overcome the return of the surveyor so far as to show that the land is more valu

200. A person claiming under a mineral location, to be entitled to the possession as against one claiming under a patent to a rail-able for mineral than for agriculture; but inroad company, must show that at date of such patent the land was known to be more valuable for mining than for agricultural purposes; and, in determining the relative value for such purposes, subsequent changes cannot be considered. Hunt v. Steese, 75 Cal.testants instead of the homesteader, and the 620; 17 Pac. Rep. 920.

13. Segregation.

(See SURVEY, p. 137.)

201. A survey to segregate a mining claim from agricultural land may be made at the expense of an agricultural claimant desirous of entering the land. Walter Bond, 18 L. D. 418.

202. After a hearing has been held to determine the character of land embraced within a homestead entry, it is the province, not of the local officers, but of the Commissioner of the General Land Office, to issue instructions in regard to a segregation survey of a mineral claim therein. Ryan v. Buivert, 14 C. L. O. 283.

203. Where, upon a contest, it is decided that the land in conflict between an agricultural entry and an unsurveyed mining claim is mineral in character, a segregation survey must be made at the expense of the mineral claimant. Creswell M. Co. v. Johnson, 8 L. D. 440.

asmuch as the surrounding lands in the township are shown to be mineral in character, notwithstanding said return, the existing mineral claims may be segregated within the time limited, but at the expense of pro

decision of the General Land Office is modified accordingly. Creswell M. Co. v. Johnson (review), 8 L. D. 440-443.

207. The failure of the public land surveyors to segregate mineral lands will not work injury to mine owners. Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635.

14. Town Site.

(See TOWN SITE, p. 451.)

208. A town site entry may embrace mineral land, the rights of miners being protected by section 2386, United States Revised Statutes. Rico Town Site, 1 L. D. 556.

209. Town sites may be located on mineral lands, the rights of mining claimants being protected by statutory reservations thereof inserted in a town site patent. (Secs. 2386 and 2392, U. S. Rev. Stat.) Relative rights of mining claimants and of town site claimants are to be decided by the courts. Esler v. Town Site of Cooke, 4 L. D. 212.

210. Section 16 of the act of March 3, 1891 (26 Stat. 1095), relative to allowance of town

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