Act of July 4, 1866, ch. 166, 14 Stat. L. 86.

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Sections 2318-2352 constitute chapter 6 (entitled Mineral Lands and Mining Resources") of title 32 (entitled "The Public Lands") of the Revised Statutes. Generally. After Dec. 1, 1873, title to lands known at the time to be valuable for their minerals, could only have been acquired under provisions specially authorizing their sale, as found in this chapter, except in the states of Michigan, Wisconsin, and Minnesota, and after May 5, 1876, in the states of Missouri and Kansas. By the Act of Congress of this latter date, "deposits of coal, iron, lead, or other mineral," in Missouri and Kansas were excluded from the operation of the Act of May 10, 1872, that is, from such provisions of that Act as were re-enacted in the Revised Statutes. In those portions of the Revised Statutes which relate to pre-emption and to homestead entries the clauses from the original acts excepting mineral lands are retained. Secs. 2258, 2302. Deffeback v. Hawke, (1885) 115 U. S. 402. See also Davis v. Weibbold, (1891) 139 U. S. 516.

"This must be taken, in view of the fact that prior to the Act of July 4, 1866, no law authorized the sale or disposal of any mineral lands belonging to the United States, and the further fact that subsequent laws incorporated in the Revised Statutes provide expressly how title to such lands may be acquired, as limiting the power and authority of the land department in disposing of the public lands valuable for minerals to some method and under such conditions as may be specifically pointed out by some Act of Congress." Kansas City Min., etc., Co. v. Clay, (Ariz. 1892) 29 Pac. Rep. 9.

Sections 2318 to 2328 relate mainly, if not exclusively, to mineral lodes or veins, and, among other things, they fix the amount or quantity of land which may be acquired under any one claim, the maximum of which is 1,500 feet along its length and 300 feet in

Whether valuable for minerals question of fact. The question whether land is mining land, or valuable for minerals, is one of fact, which is the peculiar province of the land department of the United States to determine before the patent is issued. The issuance of such patent is conclusive in the absence of fraud, mistake, or imposition. Standard Quicksilver Co. v. Habishaw, (1901) 132 Cal. 115.

Reserved for military purposes. - Mineral lands belonging to the public domain, which are reserved from sale under this section, may be reserved for military or other public purposes by the President. (1881) 17 Op. Atty.Gen. 230.

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Fraudulent purchase as agricultural land. - U. S. v. Culver, (1892) 52 Fed. Rep. 81, was a suit brought for the purpose of procuring the cancellation of two patents issued by the government to the defendants to certain lands named in the complaint. The lands were purchased under a presidential proclamation, offering them, together with a large quantity of other lands, for sale, and were purchased at private sale. They were bought by private cash entry as agricultural lands, though the purchaser knew their mineral character. It was held that such a purchase vitiated the sale because of the fraud perpetrated upon the officers of the govern

ment.

Mineral lands excepted. See R. S. sec. 2345, and statutes following such section, infra, this title.

Title to mineral lands cannot be acquired by occupancy unless for the purpose of mining or extracting minerals. Burns v. Clark, (1901) 133 Cal. 634.

Rights of property. Such right as the mining laws allow and as Congress concedes to develop and work the mines, is property in the miner, and property of great value.

Those claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific coast states. They are property in the fullest sense of the word, and their ownership, transfer, and use are governed by a well-defined code or codes of law, and are recognized by the states and the federal government. This claim may be sold, transferred, mortgaged, and inherited, without infringing the title of the United States." Forbes v. Gracey, (1876) 94 U. S. 766. See also Gorman Min. Co. v. Alexander, (1892) 2 S. Dak. 557; Mt. Rosa Min., etc., Co. v. Palmer, (1899) 26 Colo. 56.

The valuable mineral deposits mentioned in the statute are declared to be open to purchase, and are distinguished from the land in which they are found. Waterloo Min. Co. r. Doe, (C. C. A. 1897) 82 Fed. Rep. 45. But see St. Louis. Min., etc., Co. v. Montana Min. Co., (C. C. A. 1902) 113 Fed. Rep. 900. Stone. - Under this statute the public lands are free and open to exploration and occupation by the citizen for his own profit. This applies to all land containing valuable deposits, including building stone. The right thus granted necessarily carries with it the license to take what may be found in the course of exploration and apply it to the discoverer's own use, or option is left to him to acquire the exclusive right to the land containing deposits; but if he does not choose to do so, he may still avail himself of the deposit exclusively or in common with others, unless someone else acquires the exclusive right from the government. In getting stone upon the public domain, the person is not a trespasser; by taking it and bestowing his labor upon it, or causing labor to be bestowed upon it by an employee, he becomes the owner of it in fact against every person. See also the Act of Aug. 4, 1892, 27 Stat. L. 348. Sullivan v. Schultz, (1899) 22 Mont. 541.

Entries of land containing valuable deposits of building stone or limestone are permitted as "placer claims" under this section and section 2329, R. S., and one who had filed a coal declaratory statement on certain land may extract therefrom either stone or coal, if found therein, and become the owner of either. Johnston v. Harrington, (1892) 5 Wash. 78.

nonmineralized deposit. Wheeler v. Smith, (1893) 5 Wash. 704. But see Sullivan v. Schultz, (1899) 22 Mont. 541.

Granite quarries. — Lands valuable solely or chiefly for granite quarries are mineral lands. "The rulings of the land department, to which we are to look for the contemporaneous construction of these statutes, have been subject to very little fluctuation, and almost uniformly, particularly of late years, have lent strong support to the theory of the patentee, that the words 'valuable mineral deposits' should be construed as including all lands chiefly valuable for other than agricultural purposes, and particularly as including non-metallic substances, among which are held to be alum, asphaltum, borax, guano, diamonds, gypsum, resin, marble, mica, slate, amber, petroleum, limestone, building stone, and coal. The cases are far too numerous for citation, and there is practically no conflict in them." Northern Pac. R. Co. v. Soderberg, (1903) 188 U. S. 534.

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Diamonds are valuable mineral deposits." (1862) 14 Op. Atty.-Gen. 115.

Exception as to lands withdrawn from sale. "Public lands belonging to the United States, for whose sale or disposition Congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, unless some particular lands have been withdrawn from sale by Congressional authority or by an executive withdrawal under such authority, either expressed or implied." Lockhart v. Johnson, (1901) 181 U. S. 520.

A private corporation formed under the laws of a state, whose members are citizens of the United States, may locate a mining claim on the public lands of the United States. McKinley v. Wheeler, (1889) 130 U. S. 635. See also U. S. v. Trinidad Coal, etc., Co., (1890) 137 U. S. 168.

A minor may become a locator of mineral lands under this statute. No requirement that the citizen shall be of any particular age is expressed. Thompson v. Spray, (1887) 72 Cal. 531.

Rights of aliens. The location by an alien and all the rights following from such location are voidable, not void, and are free from attack by any one except the government. Manuel v. Wulff, (1894) 152 U. S. 505. See also McKinley Creek Min. Co. v. Alaska United Min. Co., (1902) 183 U. S. 563; Billings v. Aspen Min., etc., Co., (C. C. A. 1892) 51 Fed. Rep. 338; Ferguson v. Neville, (1882) 61 Cal. 356; Gorman Min. Co. v. Alexander, (1892) 2 S. Dak. 557, as to an alien grantee of locator. But see Wood v. Aspen Min., etc., Co., (1888) 36 Fed. Rep. 25; Altoona Quicksilver Min. Co. v. Integral Quicksilver Min. Co., (1896) 114 Cal. 100; Tibbitts v. Ah Tong, (1883) 4 Mont. 536.

See Territory v. Lee, (1874) 2 Mont. 124, as to invalidity of a territorial statute denying right of aliens to acquire mining lands. When application is made for the issu

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ance of evidence of title to mining property, it is necessary to show that the applicant is a citizen of the United States, or has declared his intention to become such, before a conveyance of title can be properly issued; and, therefore, as was held by the Supreme Court in the case just cited [O'Reilly v. Campbell, (1886) 116 U. S. 418], if a party is seeking to procure the title to mining property from the United States, if taken at the proper time, the objection of alienage would prevent the acquirement of title, and such objection may be made by any one adversely interested. In such cases the sovereign is a party in fact to the proceeding, which is a direct one, for the procurement of title, and the objection of alienage, no matter by whom suggested, is based solely upon the right of the government to interpose the fact of alienage as a bar to procuring or holding an interest in realty. If, however, the grant of title, or the equivalent, is made to an alien, it cannot be attacked by any third party." Billings v. Aspen Min., etc., Co., (C. C. A. 1892) 52 Fed. Rep. 251.

In order to acquire a right of location and purchase under this act, a party seeking to acquire such right must either be a citizen of the United States, or must have declared his intention to become such. If, therefore, Smith, or any other locator under whom plaintiff claims, was not a citizen, or had not declared his intention to become such at the time of making his location, he acquired no right, under the act, by virtue of such location." North Noonday Min. Co. v. Orient Min. Co., (1880) 1 Fed. Rep. 526.

In Anthony v. Jillson, (1890) 83 Cal. 298, it was held that one who had not declared his intention to become a citizen at the time of posting his notice of location was not entitled to a patent to placer mining ground. The declaration of intention to become a citizen the day after posting such notice was too late.

If a citizen and an alien jointly locate a claim, not exceeding the amount of ground allowed to one locator, such location is valid. Strickley v. Hill, (1900) 22 Utah 266.

Soldier honorably discharged. — An alien who is honorably discharged after serving an enlistment in the United States army, occupies the status of one who has declared his intention to become a citizen under section 2166, R. S. The fact that a locator of mineral lands was honorably discharged from the army has a strong bearing tending to show a declaration of intention to become a citizen, as well as a strong circumstance tending to show naturalization, and in connection with other facts and circumstances may be sufficient to establish the fact itself. Strickley v. Hill, (1900) 22 Utah 257.

Naturalization before judgment. - Manuel v. Wulff, (1894) 152 U. S. 505, was a contest between two claimants of a mining claim, to determine the right to proceed in the United States land office for a patent, and proceedings were commenced in accordance with section 2326, R. S. The applicant at the time of making application for the patent was an alien, but it was held that naturalization be

Right to inherit. The question of the right of an alien to inherit a mining claim located upon government land is, as against every person but the United States, determined by the laws of the state in which the mine is located. Lohmann v. Helmer, (1900) 104 Fed. Rep. 178. See also Billings v. Aspen Min., etc., Co., (C. C. A. 1892) 51 Fed. Rep. 338.

Location of mining claim through an agent. Long prior to the Mineral Land Act of 1872, it had been held by the courts of California that a valid location of a mining claim could be initiated through an agent. So at that time it was well understood on this coast that the law authorized a location by an agent; or, in other words, that a valid location could be made without the locator participating in person. The law, as interpreted by the courts, had been acted upon in all this mining region until it had, in a certain sense, become a rule of property. Congress had full knowledge of the local laws, and, had they intended to change or disaffirm this rule, it certainly would have been done by express provision. As there is no such provision, it is a fair presumption arising from section 2319, supra, that it was the intention to affirm and continue in force this as well as all local laws and customs, as construed by the courts, not in conflict with the laws of the United States." Schultz v. Keeler, (1887) 2 Idaho 333. See also McCulloch v. Murphy, (1903) 125 Fed. Rep. 147; Dunlap v. Pattison, (1895) 4 Idaho 473; Schultz v. Keeler, (1889) 2 Idaho 568; Murley v. Ennis, (1874) 2 Colo. 300; Moore v. Hamerstag, (1895) 109 Cal. 122.

Local customs or rules of miners. In a given case the right of possession may not involve any question under the Constitution or laws of the United States, but simply a determination of local rules and customs, or state statutes, or even only a mere matter of fact. Shoshone Min. Co. v. Rutter, (1900) 177 U. S. 508.

"The land department of the government, and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force at the time of location, when such location was made prior to the passage of any mineral law by Congress." Glacier Mountain Silver Min. Co. v. Willis, (1888) 127 U. S. 471. Not conflict with statutes. - Rules and customs of miners, reasonable in themselves, and not in conflict with any higher law, have long