"constitute a mine thereon within the meaning of the "statute, has not been judicially determined. Atten"tion is called to the question in McLaughlin v. United "States, 107 U. S. 526, but no opinion is expressed. "The land department appears to have adopted a rule "that if the land is worth more for agriculture than "mining, it is not mineral land, although it may con"tain some measure of gold or silver, and the bill in "this case is drawn on that theory of the law. In my judgment, that is the only practical rule of decision "that can be applied to the subject. Nor can account "be taken in the application of this rule of profits that "would or might result from mining under other and "more favorable conditions and circumstances than "those which actually exist, or may be produced or "expected in the ordinary course of such pursuit or "adventure on the land in question." In Dughi v. Harkins,2 which was before the interior department in November, 1883, there was a contest between mineral and agricultural claimants, the land having been returned as agricultural by the surveyorgeneral. In disposing of it, Secretary Teller, in a communication to the commissioner of the general land office, said: "The burden of proof is therefore upon the mineral "claimant, and he must show, not that neighboring or "adjoining lands are mineral in character, or that that "in dispute may hereafter, by possibility, develop min"erals in such quantity as will establish its mineral "rather than its agricultural character, but that as a "" present fact it is mineral in character; and this must appear from actual production of mineral, and not "from any theory that it may produce it; in other "words, it is fact, and not theory, which must control 66 66 your office in deciding upon the character of this class "of land. Nor is it sufficient that the mineral claimant "shows that the land is of little agricultural value. He "must show affirmatively, in order to establish his $2 Land Decisions, p. 721. 12 Sup. Ct. Rep. 802. 66 claim, that the mineral value of the land is greater "than its agricultural value."1 Rulings to the same effect upon applications for mineral patents are found in decisions of the department for many years. They are, that such applications should not be granted unless the existence of mineral in such quantities as would justify expenditure in the effort to obtain it is established as a present fact. If mineral patents will not be issued unless the mineral exist in sufficient quantity to render the land more valuable for mining than for other purposes, which can only be known by developments or exploration, it should follow that the land may be patented for other purposes, if that fact does not appear.2 The leading case of Davis v. Weibbold (supra) reviews these rulings, and so clearly affirms their doctrine that nothing more is required than to freely quote this case. Says the court: "It would seem from this uniform construction of "that department of the government specially intrusted "with supervision of proceedings required for the "alienation of the public lands, including those that "embrace minerals, and also of the courts of the mining states, federal and state, whose attention has been "called to the subject, that the exception of mineral "lands from grant in the acts of congress should be "considered to apply only to such lands as were at the "time of the grant known to be so valuable for their "minerals as to justify expenditure for their extrac"tion. The grant or patent, where issued, would thus "be held to carry with it the determination of the proper "authorities that the land patented was not subject to 1 1 Quoted in Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; and in United States v. Central Pac. R. R. Co., 93 Fed. 871, 874. Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Nicholas Abercrombie, Id. 393; John Downs, 7 L. D. 71; Cutting v. Reininghaus, Id. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Thomas J. Laney, 9 L. D. 83. "the exception stated. There has been no direct adjudi"cation on this point by this court, but this conclusion " is a legitimate inference from several of its decisions. "It was implied in the opinion in Deffeback v. Hawke, "115 U. S. 392,1 and in the cases of Colorado C. & I. "Co. v. United States, 123 U. S. 307;2 United States v. "Iron S. M. Co., 128 U. S. 673."'3 295. Interpretation of terms by the land deparɩment. As in all contests between agricultural and mineral claimants prior to final entry, in all applications to enter lands under the mining laws, and in administering the various grants to railroads, as to lands remaining unpatented, the land department is the sole judge of the character of the land and the final arbiter upon this subject, it is deemed important to supplement the foregoing selection of authorities by presenting the rulings of that department on the subject. They enter somewhat more into detail, and will furnish a reliable guide to those who may have occasion to deal with that special tribunal upon the subject of mineral lands. Commissioner Drummond thus enunciates the rule which has since governed the land department: "In the sense in which the term ' mineral' was used "by congress, it seems difficult to find a definition that "will embrace what mineralogists agree should be "included. . . . From a careful examination of the matter, the conclusion I reach as to what constitutes a 66 16 Sup. Ct. Rep. 95. 28 Sup. Ct. Rep. 131. 3 9 Sup. Ct. Rep. 195. To the same effect see Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673; Cleary v. Skiffich (Colo.), 65 Pac. 59. Circ. of Instructions, July 15, 1873. This circular is referred to and accepted, as stating the correct rule, in Pacific Coast Marble Co. v. N. P. R. R., 25 L. D. 233, 238. To the same effect, see Aldritt v. N. P. R. R., 25 L. D. 349; Phifer v. Heaton, 27 L. D. 57; Schrimpf v. N. P. R. R. Co., 29 L. D. 327; Morrill v. N. P. R. R., 30 L. D. 475; Beaudette v. N. P. R. R. Co., 29 L. D. 248. 66 66 valuable mineral deposit is this: That whatever is "recognized as a mineral by the standard authorities on the subject, where the same is found in quantities "and quality to render the land sought to be patented "more valuable on this account than for the purpose "of agriculture, should be treated by the office as coming within the purview of the mining act of May 10, "1872.1 66 "The only safe rule for the department to follow is "that already laid down and adhered to in many cases"that the coal or mineral character of the land must be "determined by the actual production from mining on "the tract in dispute, or by satisfactory evidence that "mineral (coal) exists on the land in question in suf"ficient quantities to make the same more valuable for "mining than for agriculture. . . "It has been repeatedly held by this department that "the proof of the mineral character of the land must "be specific, and show actual production of mineral "therefrom; that it is not enough to show that land in "the neighborhood, or adjoining lands, are mineral in "character, or that the lands in question may hereafter "be found to be mineral. (Kings County v. Alexander, "5 L. D. 126; and Dughi v. Harkins, 2 L. D. 721.) The "proof must show satisfactorily the mineral (coal) "character, and not be based upon a theory.2 "It is contended that the mining statutes provide "that in an ex parte case, 'land containing gold in any 66 6 quantity is mineral land, and that they contemplate "'inquiry into the value of the deposit only when the "application of the mineral locator conflicts with that "of some other locator or claimant.' . . . "It must be apparent that, for the purpose of issuing "patent, there is lodged somewhere the authority and duty to ascertain whether a claim contains 'valuable "deposits,' for no other land can be so acquired. It is "equally clear that for the same purpose such authority " is vested in this department, charged, as it is, with the "determination of the facts prior to the issuance of 1Copp's Min. Dec., p. 317; W. H. Hooper, 1 L. D. 561. Lindley on M.-10 "patent. Should the question of the character of the "land be properly presented at any time before patent, "it would manifestly be the duty of the department to "ascertain whether or not the land contains 'valuable "deposits,' in an ex parte case or a contest. The fact "that a claim is contested would not change the char"acter of the land to be taken under this law. In any " event, it must contain ‘valuable deposits.'1 66 "The proof of the mineral character of the land must "be specific, and based upon the actual production of "mineral; that it is not enough to show that neighboring "or adjoining lands are mineral in character, and that "the lands in controversy may hereafter develop min"erals to such an extent as to show its mineral character, "but it must appear from actual production of mineral, "and not from a theory that the lands may hereafter "produce it." 2 The present existence of mineral in such quantity as to render the land more valuable for mining than agriculture must be shown, to defeat an agricultural entry.3 "It is not necessary that, to meet the requirements, "there should be upon the land a mine in working order, "from which gold is being actually produced. It is "sufficient if it be shown by satisfactory proof that "mineral exists in paying quantities, and such proof "will usually be based on mining operations or explora"tions. In the present case it has not been shown that any mining has been carried on on this land. The "evidence consists of the testimony of persons, most of "them claiming to be expert miners, who went upon this “land and panned out small quantities of earth. The preponderance thereof shows that the land bears gold, "and taking the testimony of the witnesses for the min"eral claimants alone, it sustains the conclusion that "it is there in paying quantities." 'Royal K. Placer, 13 L. D. 86. Warren v. State of Colorado, 14 L. D. 681. 3 Winters v. Bliss, 14 L. D. 59; Walton v. Batten, Id. 54; Peirano v. Pendola, 10 L. D. 536. Johns v. March, 15 L. D. 196. |