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but that, as a present fact, it is mineral in character; and this must appear from actual production of mineral."
This language of Secretary Teller has been widely quoted and is undoubtedly a correct statement of law as applied to gold-bearing perpendicular veins, and for a time an attempt was made to apply this rule to coal. See Commissioners v. Alexander (5 L. D. 126), decided in 1886, where, under the authority of the Dughi case, the Secretary reversed the commissioner and held that the coal character must be proved from the actual production of mineral from the land. But it soon became apparent that the rule would not apply to flat veins like coal; and in 1903, in re Don C. Roberts (41 L. D. 639), it was said:
" It is the well-established practice of this department and has been since long prior to date of final proof upon this entry
to take into consideration, in determining the character of the land, not only surface indications but the geological formation of and discoveries upon adjacent or nearby lands. This is particularly true with respect to coal deposits whose peculiar formation is of such a bedded or general flat nature and of such wide extent and regularity as to permit the geologist or expert miner to determine its existence under large areas by examination of the geological formation and the characteristics of the coal and its dip as exposed in near-by workings."
Another case of difficulty in applying the mining laws arose in regard to oil. It has always been a basic principle that “discovery” is the first thing to be done about a mining claim but, of course, if the oil pool were 2.000 feet under ground, there could be no discovery until months of drilling had been done. To meet this new condition the courts stretched the old principle of “possession " and held that as long as drilling was in progress in good faith, the driller would be protected to the outer boundaries of his claim. A wellreasoned case is Whiting v. Straup (17 Wyo. 1, 95 Pac. 849.).
In order, therefore, to understand what constitutes “discovery" in regard to oil shale, it is important to understand clearly how the oil shale occurs, and this statement is prepared for that purpose.
1. Mineral deposits are classified by J. D. Irving and A. M. Bateman, of the geological department of Sheffield Scientific School, Yale University, as. follows (p. 392, Mining Engineers' Handbook, by Robert Peele): I. Bedrock (or primary deposits): A. Syngenetic deposits
a. Fissure veins.
b. Other rock openings. 4. Replacement deposits.
5. Contact metamorphic deposits. II. Distintegration (or secondary) deposits:
6. Mechanical concentrat placers.
8. Residual concentrations. III. Metamorphis derivatives.
In the above classification, which includes all classes of mineral deposits, oil shale would be placed in Division I, class A, subdivision 2, or what is known as syngenetic sedimentary deposits.
These types of mineral deposits were formed during and contemporaneously with the rock-making processes and are classed by some geologists as contemporaneous deposits. These show by their form, by their relation to the country rock, and by their contents that they are, just like the stratified rocks, a product of sedimentation. They have been formed at the bottom of seas or oceans, either as a mechanical or chemical precipitate. Clays, shales, slates, sandstones, etc., owe their existence to a mechanical precipitation. Water brought the detritus and deposited it in the sea, ocean, or lake. In time the deposits hardened through pressure and other metamorphic processes.
The oil shales in the Green River formation of Colorado do not contain their mineral matter as oil but primarily as a carbonaceous substance called " kerogen," from which oil may be obtained by "destructicve distillation,”i. e., heating in the absence of air and breaking up the hydrocarbons of the "kerogen" into vapors, which are then condensed into oil.
Theoretically the formation of oil shale is considered analogous to coal. Vegetation grew in a basin in great abundance and repeatedly died off and grew again. These accumulations were carried off during periods of depression and, together with marine life, deposited as sediments. By a process of slow oxidation and the action of bacteria, which combined with heat and pressure and the element of time during which these operations were repeated many times, the great oil shale deposits of the Green River formation were laid down. The mineral substance called “kerogen," from which oil is obtained by destructive distillation of the oil shale, was formed and deposited contemporaneously with the rock-making sediments, and it is that which gives oil shale its value.
Syngenetic" or " contemporaneous” deposits of other minerals have been formed similarly, among which are the copper deposits in the shales and schists near Mansfield, Germany. These deposits are in the Pernrian and extend for hundreds of miles and are the main source of copper production in that country. The copper deposits in Mora County, N. Mex., along Coyote Creek, a branch of the Mora River, are in the shales and are quite extensive.
The Clinton iron ores of the Appalachians, from New York to Alabama, are examples of " syngenetic " deposits.
To this class of " contemporaneous deposits belong all coal deposits, and many mineral deposits of manganese and iron.
J. D. Irving and A. M. Bateman, of Yale University, in People's Mining Engineers' Handbook, state that “ sedimentary ore layers are the most uniform and extensive of nretalliferous deposits. Their origin being recognized, their extent can be predicted from a single outcrop over a geographic range subject only to removal by erosion far greater than the area of any given property. Thickness and tenor may be nearly uniform over the entire area, provided estimates are based on a portion of the mass beyond the reach of surface alteration."
The oil-shale deposit of the Green River formation is analogous to the sedimentary-ore deposits described above, and is one large extensive deposit made up of layers of shale, the zones or horizons of which vary in richness and color and lime and sand content, all of which carry some kerogen. Therefore the shale from which oil may be obtained, regardless of quantity, when found in any part of the Green River formation constitutes a discovery, and is sufficient reason to justify a prudent man in going ahead and spending his money with a reasonable expectation of developing mineral in paying quantity.
2. The Green River series of oil shale rests on what is known as the Wasatch formation and its greatest thickness is about 2,600 feet. It is composed of zones or horizons of oil shale, varying in thickness and color and lime and sand content, practically all of which will yield oil in varying quantity when tested in retorts properly constructed to make the essay.
The oil shales of the Green River formation are very extensive and are noted for their continuity and the uniformity of yield of the various horizons. Like many other "syngenetic" or "contemporaneous” deposits, they cover a vast area.
3. A zone situated near the middle part of this formation, and known as the mahogany zone contains the richest of the oil shales, and a composite sample across 10 feet of this zone will yield in excess of 50 gallons of oil per ton of shale. By varying the width of the composite sample, various yields can be had; as for example, a sample across 50 feet of the mahogany zone will yield about 35 gallons of oil per ton of shale. By extending the composite upwardly and downwardly to the limits of the oil-shale series in the Green River formation we can get a composite zone about 2,600 feet thick, which would constitute one immense mineral deposit, made up of many zones of varying oil yield, and a sample taken from any portion of this deposit and yielding oil in any anrount would constitute a discovery.
4. The mahogany zone can be traced for hundreds of miles in and out of the gorges and canyons cut through the Green River formation, by following their sinuosities, and can be easily identified by a very markedly uniform and persistent calcareous sandstone parting about 6 inches wide, lying at a distance of some 13 or 14 feet above the richest part of the mahogany zone. By finding this parting in many places from Grand Valley to 20 miles or more west of Watson, Utah, a total distance of at least 75 miles, I have been able to pick out and identify the mahogany zone wherever it outcropped and was accessible. 5. The oil shales are exposed in the steep slopes near the base of the Green River formation and in the precipitous cliffs above these slopes.
On the tops of the mesas, above the cliffs, there is an overburden of detritus, covered by a growth of tangle and sagebrush which often conceals the outcrop, making it difficult to find the richer exposures of soil shale. There are occasional growths of quaking aspens and red spruce on the northern exposures of the slopes.
6. All around these mesa tops, in every direction, deep canyons and gorges have been cut into the oil shales of the Green River formation and exposures of the richer zones can be found. This formation being a "syngenetic" or
contemporaneous” mineral deposit, and the outcrops in the canyons and gorges showing marked continuity and uniformity, it is certain, from geological inference, that the mahogany zone underlies the whole of the Green River formation and at such a distance from the top mesas in any place as to make it easily accessible for mining through shafts.
7. The accompanying photograph, marked “Exbibit A," shows the line of demarcation between the Green River and Wasatch formations, everything in the picture above such marker being Green River formation.
The outline in black shown on the faces of the cliffs indicates the position of the mahogany zone.
The photograph marked “Exhibit B” shows the top of the oil-shale mesas, which is the top of the Green River formation, and gives a visualization of the top mesas and how they are covered by an overburden of detritus and an overgrowth of tangle and sagebrush.
Both pictures were taken in the region around Grand Valley.
8. Mineral deposits in metal mining often occur in wide veins or deposits of low-grade value, and the following example illustrates the analogy between making a discovery in that type of deposit and in the syngenetic sedimentary type, such as the oil shales of the Green River formation occur in.
The famous Comstock lode at Virginia City, Nev., is a great fissure vein 4 miles long and several hundred feet wide. The ore occurs scattered throughout the vein. Portions of the deposit are too low grade to work, yet the finding of any portion of the vein or lode in place is sufficient to constitute a discovery. The lode has produced some $350,000,000 and upward.
The Tradewell mine, at Douglas Island, Alaska, consists of a diorite dike 400 feet wide, piercing Triassic slates. It is a very low-grade gold ore deposit, yet its production has run into millions of dollars.
At Black Hills, S. Dak., is the Homestake mine, one of the largest deposits of low-grade ore ever discovered. The ore deposit occurs in the Archean schists and shales and is from 300 to 400 feet wide. The boundaries of the deposit are poorly defined, and a superficial examination may fail to distinguish be. tween ore and rock, yet a trace of gold would be sufficient to justify a prudent man exploring the formation. This mine has produced millions.
The Mother lode, on the west flank of the Sierra Nevada range of mountains in California, is a mineral belt composed of parallel fissures contacting between slates and igneous rocks. It is over 100 miles long and from 1 to several miles wide. A trace of gold in that belt would be sufficient to warrant any prudent man to spend time and money in following up his discovery.
1. The oil shales of the Green River formation belong to a class of mineral deposits, known as syngenetic sedimentary deposits, which is sometimes referred to as contemporaneous deposits. These deposits are of exceptional uniformity and continuity, and their extent can often be predicted from a single outcrop. Copper, iron, manganese, coal, and “kerogen” and other minerals are found in this type of deposits.
2. The Green River formation is a bedded mineral deposit, approximately 2,600 feet thick, composed mainly of zones of oil shale of varying thickness and yield, all bearing some kerogen.
3. The richest part of this deposit lies near its middle portion, and is a zone the various composites of which will yield from 35 to 50 gallons of oil per ton of shale. By extending the composite upwardly and downwardly to include the entire Green River formation we have one immense mineral deposit about 2,600 feet thick.
4. The mahogany zone can be traced for hundreds of miles in and out of the sinuosities of the canyons, and this proves the marked continuity and uniformity of the horizons of the Green River formation.
5. Outcroppings of rich oil shale are exposed in every direction from the top mesas, in the gorges and canyons cut through the Green River formation, which evidence, taken with the fact that the type of mineral deposit in which the oil shales are classed is that which is known as syngenetic or contemporaneous deposits, leads to the geological conclusion that the entire Green River formation of oil shale is underlain by the rich mahogany zone.
6. The top mesas of the oil-shale deposits of the Green River series are covered with detritus and tangled brush, making it difficult to find the richer horizons of oil shale in that part of the deposit.
7. The photographs marked " Exhibit A” and “B” show visually the base of the Green River formation, the position of the mahogany zone, and the physical condition of the tops of the mesas.
8. Examples of a number of large ore deposits are given to show the analogy marking a discovery in the oil shales of the Green River formation and a discovery in any portion of those massive deposits.
F. A. GOODALE, E. M.,
Oil Shale Geologist. Mr. LARWILL (continuing) : Attached to Mr. Goodale's statement are two pictures which illustrate the extent of the 2,600-foot vein. They illustrate also the sinuosities of the canyons, in any one of which the entire series is disclosed.
Now on behalf of the Columbia Oil Shale & Refining Co. and nine other claimants we have prepared and wish to file at this hearing a brief.
The claims are all individual claims. They are not large claims; but they all belong to different citizens of the country, many of whom are here in person, but others, owning a small number of claims, could not come. But, gentlemen, let me assure you that they are watching this hearing with intense interest, because in every case they either have pending applications for patent or else they are preparing their applications for patent, and on what is developed at this hearing they feel, in view of the expression of Judge Finney in the Freeman-Summers case-on what has been developed here to-day by these scientists and lawyers depends the fact whether they are going to lose what in good faith they have put into these claims, or whether, where there has been a discovery of mineral on the claim, their claims will be patented in accordance with the law as it has always stood and in accordance with the customs of miners which existed before there was any express law on the subject. These claims run from 7,500 acres in 2 of the 10 instances down to 1,500 acres and 1,300 acres, not large claims but of extreme importance to these men who have made the investment in their claims, relying upon the existing law and relying upon the fact that the Green River series in its entirety constitutes but one single deposit, and that under the existing law a discovery of the mineral sought in any horizon of the deposit constitutes in truth and in fact a discovery of the entire deposit.
Now, as stated by Mr. Goodale, there is not any difficulty in making a discovery where the gorges and canyons cut up the mountains. These pictures of the Columbia property illustrate that. There is the whole Green River series exposed to view in these canyons, and all one has to do is to walk up those canyons and there discover and break off a piece of mineral.
Before I have finished I want to read from one of the depositions which have been taken, to show just what a practical discovery is. There is nothing mysterious about a discovery. It is not a laboratory experiment; it is an exposing to view, the simple showing, opening up of the deposit. That is all a discovery is. But the difficulty arises from these so-called top claims; that is to say, the claims that lie between the gorges and canyons; and many of these applications for patent which are pending, to which I have referred, concern these so-called top or ridgepole claims. Now on these claims, on each and every claim, the mineral has been discovered in some quantity, but the richer shales which are exposed, the richer zones or horizons which are exposed in the canyons and gorges, are not exposed, as you can see, on these top claims, and it must be therefore a discovery under the old law of some of the mineral on the claim sufficient absolutely for a discovery because of the fact, as is shown by such remarkable unity among these technologists who have prepared these papers—that it constittes but one single blanket deposit, and a discovery anywhere within that deposit is a discovery of the entire deposit.
Now, briefly I wish to quote from the cases which have been referred to more particularly in our brief, the simple statement of what is required in a discovery, and am amazed that we have sat here all day and have had no mention of the case of Castle v. Womble decided by this department.
Secretary FINNEY. You are getting back to first principles.
Mr. LARWILL. And that is just what this is, Judge Finney, simply a matter of first principles—a blanket deposit, a discovery of mineral and the locating and going to patent under the laws as they have always existed. Back to first principles; yes, sir.
Now the case of Castle v. Womble has been authority, as you know, and has been quoted by the courts right down through the years—where minerals have been found." As I have stated, this precise mineral has been found on all of these claims, to which I refer, top claims. In claims with cliff face the same thing, the mineral, the kerogen, the mineral that produces the oil when retorted, has been found on all of these claims. “Where mineral has been found, and the evidence is of such a character that a person of ordinary prud. ence would be justified in the further expenditure of his time and money with a reasonable prospect of success there has been a discovery."
Secretary FINNEY. And now, right there, the case of Womble involved a lode mining claim. There is a discovery of a vein. Now the theory is that a man discovers some mineral, it may be a small amount, and has reason to believe that that vein is impregnated with mineral and may probably grow richer as he goes down. That is sufficient discovery. There is continuity. He follows the vein on down into the rock.
Mr. LARWILL. That is true; the language used in Castle v. Womble was used in connection with a lode mining claim.
Secretary FINNEY. That is right.
Mr. LARWILL. But it has been repeatedly quoted by the courts and followed by the courts whether the matter to be considered by the court was a placer claim or a lode claim.
Secretary FINNEY. But the principle could only apply where you had continuity in your mineral bearing formation or deposit or whatever it is.
Mr. LARWILL. And that is precisely, if you please, what has been shown by all of these papers and all of this discussion here to-day. There is not a barren zone, there is not a barren inch of that great Green River deposit in these shale areas of Wyoming and Colorado and Utah, not one barren inch. It all contains some of the kerogen, much in some of the zones, less in others, but never a barren streak in the whole deposit. I might stop and say here that when the department classified these deposits it could have classified them either as lodes or it could have classified them as placers. This character of deposit is right on the dividing line, and some of this character of deposits have been classified as lodes and some as piacers, but the discovery of mineral is the same. As it happens the first case classified them as placers. The main effect of that was as to their shape and size. But as to the discovery of mineral, this language in Castle v. Womble has been used in most of the cases. It is the fundamental language as to discovery, whether the particular matter involved in the case was a lode claim or a placer claim. Now we get right into the Alaska muck cases, with which we are all familiar. Those are cases where the auriferous gravels were deposited along the river beds and then the muck came down and covered them up, but all through the mud there was a trace of gold. The courts have held in those cases, as your honors know, that the discovery in the top of that muck of a trace of gold, because of the surrounding evidence, is a sufficient discovery.
Now, what may be considered after you have discovered the mineral, I do not care in what amount but in any amount, on your particular claim? What may be considered? First, it is laid down time after time that the minerals found need not in themselves be of commercial value. Lindley, our great authority, in his work on Mines, section 336, page 768, says:
“ It is enough if the vein or deposit has a present or prospective value. No court has ever held that, in order to entitle one to locate a mining claim, ore of commercial value, in either quantity or quality, must first be discovered."
Now Lange v. Robinson, the Alaska Muck case, laid down the rule that the situation of the claims in question upon which the gold had been discovered, near other lands presenting the same surface indications which at the date of the location of these claims were known to be valuable for the placer gold which they contained, might be considered after the discovery of the mineral in the