any profits resulting from mining operations thereon. Caledonia M. Co. v. Rowen, 2 L. D. 714. 74. The existence of mineral in such quantities as to justify expenditures in the effort to secure it should be established as a present fact in order to bring the land within the class subject to mineral entry. John Downs, 7 L. D. 71. 82. Land may be proven to be mineral in character without proof of the actual discovery of valuable deposits thereon, as by the fact that it is in the center of a valuable mineral belt, surrounded by valuable mines, that money is being spent preliminary to working it, and that the agricultural claimant has boasted of its mineral character. Pulliam v. Hunter, 2 C. L. O. 180. 75. Where land is prima facie agricultural 83. The burden of proof, where land is rein character, the one alleging its mineral turned as agricultural, is upon the mineral character must establish it by the actual pro- claimant, and he must show, not that the land duction of mineral upon the land, not merely in the neighborhood is mineral and theoretby proof of the existence of mineral on ad-ically the land in dispute must contain minjoining tracts, and it must appear that the eral, but that it actually does produce mineral. land is more valuable for mineral than for Dughi v. Harkins, 2 L. D. 721. agricultural purposes. Savage v. Boynton, 12 L. D. 612. 76. On issue joined as to the character of the land, the question to be determined is whether as a present fact it is mineral land, and more valuable for mining than for agriculture. Cutting v. Reininghaus, 7 L. D. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Peirano v. Pendola, 10 L. D. 536. 77. To stamp land as mineral in character, mineral must be actually found thereon, and a mere theory as to its existence will not be accepted as establishing its mineral character. Walton v. Batten, 14 L. D. 54. 78. Land, to be enterable under the min eral land law, must be shown to contain mineral in such quantities as will render profitable the working of the claim. It must, under the placer law; contain a valuable deposit. Royal K. Placer, 13 L. D. 86. 79. An applicant for a mineral patent must show the land claimed to contain valuable mineral, and that the improvements upon the claim tend to its development. John Downs, 7 L. D. 71. 80. The mineral character of land may be established by proof of the existence of mineral therein in paying quantities, and the actual operation of a mine on the land is not necessary to show the fact, as it may be demonstrated by experiment, prospecting and "panning." Johns v. Marsh, 15 L. D. 196. 81. In determining the character of land alleged to be chiefly valuable for coal, if coal has been actually produced, the probable extent of the deposit may be shown by testimony of expert geologists and miners. Rucker v. Knisley, 14 L. D. 113. 84. A mineral claimant who contests an agricultural entry, alleging the mineral character of the land, must prove that the land contains mineral of commercial value and of an extent which would justify an expenditure of money in its development. This cannot be proved by showing the production of mineral from neighboring tracts. Departmental decision of March 16, 1896, In re Brown v. Schmidt. 85. The mere fact that portions of the land contain particles of gold-bearing quartz would not necessarily impress it with the character of mineral land within the meaning of the statute. Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Cutting v. Reininghaus, 7 L. D. 265; Etling v. Potter, 17 L. D. 424. * * * The statute 86. "But in determining the question of whether the land is mineral or not, such contingencies, possibilities, or even probabilities cannot be considered. does not reserve any land from entry as a homestead simply because some one is foolish or visionary enough to claim or work some portion of it as mineral ground, without reference to the fact whether there are any paying mines on it or not." United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 482. 87. As between mineral claimants, when it is alleged by one that the lode claim of the other was not based on a valid discovery prior to location, it is no part of the defense to show the existence of a valuable deposit of mineral. The value of the mineral deposit is a matter into which the government does not inquire after discovery and location, save in controversies between mineral and agri cultural claimants. Tam v. Story, 21 L. D. eral does not show the land to be mineral in 449. character. Warren v. State of Colorado, 14 L. D. 681. 88. The existence of a known lode is a question of fact for the jury. "It cannot be said, as a matter of law in advance, how much gold or silver must be found in a vein before it will justify exploitation and be properly called a known vein." Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394. 89. Assays made from samples are but slight evidence of the value of the vein from which the samples are taken. Cheesman v. Shreeve, 40 Fed. Rep. 787; Dobler v. Northern Pacific R. R. Co., 17 L. D. 103. 90. The mineral claimant's duty is to show the non-agricultural character of the land as well as its value for minerals. He must also prove that it is more valuable for mining than for agricultural purposes. Caledonia M. Co. v. Rowen, 2 L. D. 714. 91. Proof of the sale of a mining claim two years after the issuance of the town site patent is not evidence of the known mineral value of the land at the date of said patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304. See S. C., 161 U. S. 658. 92. Where land was returned as agricultural and is so claimed, a mineral claimant must show it to be more valuable for mineral than for agricultural purposes. Tinkham v. McCaffrey, 13 L. D. 517. 93. When mineral has been discovered upon the land in question, the value and extent of mineral deposits on neighboring tracts are proper matters for consideration as tending to show the value of the mineral deposit discovered upon the land involved. Santa Clara M. Ass'n v. Scorsur, 4 L. D. 104; Rucker v. Knisley, 14 L. D. 113; Hamilton v. Anderson, 19 L. D. 168. 94. Proof of the mineral character of the land must be of the actual production of mineral thereon, not that adjoining lands are of that character, nor that the land in question may hereafter develop mineral. Commissioners of Kings County v. Alexander, 5 L. D. 126. 97. A coal claimant, contesting an original homestead entry, must show the land to be valuable for coal deposits by actual production of the coal. Jones v. Driver, 14 L. D. 514. 98. The proximity of land to coal veins will not warrant the conclusion that it is mineral in character, where it is not returned as such, and its mineral character is not made to appear as a present fact. John E. Williams, 11 L. D. 462. 99. In determining the value of land claimed to be valuable for coal, the fact that adjoining tracts are known to contain valuable deposits of coal may be considered in connection with the fact that coal has been discovered upon the land in question. Departmental decision of May 23, 1896, In re Seifred v. Minnelli. 100. "Probably in a majority of cases than the existence of valuable deposits of where a placer claim is located, other matters mineral enter into the estimate of its worth. Its accessibility to places where supplies and medical attendance can be obtained for the men engaged in working upon it, and timber secured to support the drifting or tunneling which may be necessary; the facility with which water can be brought to wash the mineral from the earth, sand or gravel, with which it may be mingled; and the uses to which the land may be subjected when the claim is exhausted, may be proper subjects of consideration." United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568. 101. In determining whether or not land is more valuable for mining than for agricultural purposes, physical difficulties to the successful working of the land as a mine may be considered. State of Washington v. McBride, 18 L. D. 199. 102. In a hearing to determine the character of land, the mineral claimant may submit testimony as to its non-agricultural character, that a comparison may be drawn between its agricultural and mineral values. Caledonia G. M. Co. v. Rowen, 2 L. D. 714. 103. Ex parte affidavits with no opportunity for cross-examination should not be en96. The fact that land lies in a mineral tertained in contested mining cases. France belt and that neighboring tracts contain min- | v. Harrison, 5 C. L. O. 66. 95. The mere proximity of tracts containing coal does not stamp the land on which no coal has been found as coal land. Scott v. Sheldon, 15 L. D. 361. 5. Mineral. 112. Land on which is found mineral of commercial value is enterable under the mineral land laws, regardless of the fact that from lack of transportation facilities the mineral cannot at the present time be put upon the 104. If the land contains gold or other valuable deposits in loose earth, sand or gravel, which can be secured at a profit, it is enterable under the placer mining laws, re-market. Departmental decision of March 24, gardless of other valuable qualities it may possess, such as timber, or the uses besides mining to which it may be put. United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568. 105. Land shown to contain mineral in sufficient quantities to justify a reasonable person in spending money and labor for its extraction is mineral in character, and as such excepted from the grant to the Northern Pacific Railroad Company. Casey v. N. P. R. R. Co., 15 L. D. 439. 106. Land which is known as a present fact to contain mineral in such quantities as will justify expenditures to obtain the same is mineral land. Departmental decision of March 27, 1896, In re Hull v. Livesay. 107. Land known to contain mineral in such quantity as will justify expenditure to obtain it, at date of a final homestead entry, may not be patented to the homestead claimant. Departmental decision of May 20, 1896, In re Porter v. Scannell. | 1896, In re Smith v. Wallace. 113. Land valuable for deposits of mineralbearing tailings may (apparently) be located as a mining claim. Rogers v. Cooney, 7 Nev. 213. 6. Non-mineral. 114. The mere presence of minerals in unascertained quantities does not make a given spot a mine. Mullan v. United States, 118 U. S. 271; Ah Yew v. Choate, 24 Cal. 562; 1 Mor. Min. Rep. 492; Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422: Westmoreland Coal Co.'s Appeal, 85 Pa. 346; Bell v. Wilson, L. R. 1 Ch. App. 308. 115. The fact that land contains some gold will not except it from entry under the agricultural land laws if it is more valuable for agricultural than for mining purposes. United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 482. 116. It is not sufficient to constitute "known mines" of coal, within the meaning 108. "It is my opinion that where minerals of the statute, that there should be merely have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine," the land is mineral in character, and will be awarded the mineral claimant. Castle v. Womble, 19 L. D. 455. 109. Land chiefly valuable for deposits of building stone of fine quality is mineral in character, and not subject to entry under the agricultural land laws. McGlenn v. Wienbroeer, 15 L. D. 370. Contra, Departmental Instructions of Aug. 29, 1896. 110. Coal lands are mineral lands, and are to be acquired only under laws specifically applicable thereto. Mullan v. United States, 118 U. S. 271. (Affirming United States v. Mullan, 7 Sawy. 466; 10 Fed. Rep. 785.) 111. Land is mineral in character if it contains mineral (coal) in paying quantities, and the present remoteness of the land from lines of transportation is immaterial. Smith v. Buckley, 15 L. D. 321. indications of coal beds or coal fields of greater or less extent and value as shown by outcroppings 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 extent and value as to make the land more valuable as a coal mine than for agricultural purposes. Colorado Coal & Iron Co. v. United States, 123 U. S. 207. 117. "It is not enough that there may have been some indications, by outcroppings on the surface. of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as known' veins or lodes. To meet that designation the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation." United States v. Iron S. M. Co., 128 U. S. 673. (Affirming 24 Fed. Rep. 568; approved in Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394.) 118. "The fact that there may be small quantities of gold in it not in sufficient quan tities to warrant miners to work it, would not prevent the homestead claimant from taking it as agricultural land." Etling v. Potter, 17 L. D. 424. 119. To be excepted from an agricultural entry, land must be known at date of entry "to be so valuable for their minerals as to justify expenditure for their extracting." Davis' Adm'r v. Weibbold, 139 U. S. 507; S. C., 7 Mont. 107. 120. Lands containing minerals, but not in “such quantities as to justify expenditures in the effort to extract them," are not mineral lands within the laws of the United States. Deffeback v. Hawke, 115 U. S. 392. 121. The fact that land contains a thick vein of coal does not stamp it as mineral in character, where it is shown that the coal cannot be profitably mined. Departmental decision of May 29, 1896, In re Green v. Grumbler. 122. The fact that land has been located as a mining claim is not, in itself, proof of the mineral character of the land, especially where the burden of proof is upon the mineral claimant. Etling v. Potter, 17 L. D. 424. 123. Land is not mineral if it will not pay to work by the ordinary methods of mining, as a present fact. Cuttings v. Reininghaus, 7 L. D. 265. 124. The fact that mineral (petroleum) has been discovered on adjoining tracts is not proof of the mineral character of the land. Roberts v. Jepson, 4 L. D. CO. 125. "Many springs and many waters are impregnated with mineral held in solution; but it does not follow that the lands bearing such waters are mineral lands, and can be patented as such. Lands of a saline character are an exception, and are expressly provided for in the laws relating to the disposition of the public lands. Lands containing mineral springs not of a saline character are subject to sale under the general laws, and not under the acts relating to the sale of mineral lands." Pagosa Springs, 1 L. D. 562 126. To be reserved from sale under the agricultural land laws as mineral, lands must be capable of being profitably worked for mineral by the usual modes of mining. Departmental decision, In re Deadwood Town Site, 8 C. L. O. 153. 7. Discovery. (See DISCOVERY, p. 36.) 127. In the matter of discovery, the spirit of the statute is satisfied by the discovery of mineral deposits of such value as to at least justify the exploration of the lode in expectation of finding ore sufficiently valuable to work. Shreve v. Copper Bell M. Co., 11 Mont. 309; 28 Pac. Rep. 315. (Davis' Adm'r v. Weibbold, 7 Mont. 107; 139 U. S. 507, distinguished.) 128. Before land may be patented under the mineral land laws "there must be a discovery of the mineral and a sufficient exploration of the ground to show this fact beyond question." United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568. 129. The value of mineral discovered in a mining claim will not be inquired into by the Land Department, except in a controversy between mineral and agricultural claimants as to the character of the land. Tam v. Story, 21 L. D. 440. 8. Location. (See LOCATION, p. 77.) 130. The location of a mining claim, prima facie valid, raises the presumption of the mineral character of the land. Sweeney v. N. P. R. R. Co., 20 L. D. 394. 131. A certificate of location of a mining claim cannot be accepted in a contested case as establishing the mineral character of land in the absence of evidence of an actual discovery of mineral. Etling v. Potter, 17 L. D. 424. 132. The location of a mineral claim on land returned as agricultural in character will rebut the presumption raised by the return and place the burden upon an agricultural claimant of proving its non-mineral character. N. P. R. R. Co. v. Marshall, 17 L. D. 545. 133. The fact that land was once embraced in a mining location, since abandoned, is not proof of its mineral character, which must appear as a present fact. Berry v. C. P. R. R. Co., 15 L. D. 463. 134. The location of a mining claim is warranted where mineral is discovered such as would justify a person of ordinary prudence in expenditure of labor and means to 455. develop the claim. Castle v. Womble, 19 L. D. | under the provisions of the 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 135. "Such matter must bear one or more of the metals named in the statute before a mine that has been discovered can be located under the law." Territory v. Mackey, 8 Mont. 168; 19 Pac. Rep. 395. 136. “Valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following in expectation of finding ore." Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. See S. C., 111 U. S. 350. 9. Entry. (See ENTRY, p. 239.) 137. A mineral entry will be canceled when it appears that the claim is not known to be valuable for mineral and is not taken for mining purposes. Trickey Placer, 7 L. D. 52. 138. Land, to be subject to entry under the placer law, must be shown to be placer mining land as a fact. Searle Placer, 11 L. D. 441. 139. A hearing to determine the mineral or non-mineral character of land should not be ordered in the absence of an application to enter it. C. P. R. R. Co., 8 L. D. 30; 9 L. D. 613. 140. The allowance of mineral entry is an adjudication of the mineral character of the land entered, and the burden of proof is thereafter upon one who alleges its non-mineral | character. Johns v. Marsh, 15 L. D. 196. 141. Where a mineral entry has been allowed upon a satisfactory showing of the mineral character of the land, a hearing will not be ordered on the protest of an agricultural claimant, unless it be alleged that the land was agricultural in character at date of filing of mineral application for patent. Houghton v. McDermott, 15 L. D. 509. 142. A preference right of entry will be accorded an agricultural contestant who secures the cancellation of a mineral entry because of the non-mineral character of the land. Dornen v. Vaughn, 16 L. D. 8. 10. Agricultural. (See AGRICULTURAL CLAIM, p. 376.) 143. "Thus read they must be held, we think, merely to prohibit the passage of title 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 lands from pre-emption and settlement and from grants to States for universities and schools, for the construction of public buildings and in aid of railroads and other works of internal improvement, are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify the 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 metals 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." Davis' Adm'r v. Weibbold, 139 U. S. 507. (Citing and approving Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Merrill v. Dixon, 15 Nev. 401; Cowell v. Lammers, 10 Sawy. 246; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Dughi v. Harkins, 2 L. D. 721; Cleghorn v. Bird, 4 L. D. 478; Samuel W. Spong, 5 L D. 193; Commissioners of Kings County v. Alexander, 5 L. D. 126; Magalia G. M. Co. v. Ferguson, 6 L. D. Downs, 7 L. D. 71; Cutting v. Reininghaus, 218; Nicholas Abercrombie, 6 L. D. 393; John 7 L. D. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Thomas J. Laney, 9 L. D. 83.) 144. To be excepted from a final homestead entry as mineral, land must have been known at date of such entry to be mineral in character and more valuable therefor than for agricultural purposes. The discovery that land is valuable for coal, after final homestead entry, will not reserve it from patenting under the homestead entry. Nicholas Abercrombie, 6 L. D. 393. 145. To defeat a final homestead entry a mineral contestant must show that, at date of such entry, the land was known to be more |