The same court, in a still later case,' holds that natural gas is a mineral, although it possesses peculiar attributes, which require the application of precedents arising out of ordinary mineral rights with much more careful consideration, and terms it a mineral feræ naturæ.

A recent case, decided by the New York court of appeals," involved the construction of two deeds executed by the owner of a tract of land. The first deed conveyed all the "mineral ores" in the tract, "reserving all other rights. "and interests in said lands, save said mineral ores and the right to raise and remove the same." By the second deed, which made no reference to the first, there was conveyed to the same grantees all the mineral and ores on the same tract, with the right to mine and remove the same; also, the right to sink shafts, and sufficient surface to erect suitable buildings necessary and usual in mining and raising ores; also, the right of ingress and egress for mining purposes, and to make exploration for minerals and ores.

The plaintiff was the owner of whatever passed by these two conveyances. The defendant was the owner of what remained of the tract. The controversy arose over the right of the defendant to quarry granite on the tract. The granite was discovered on the premises after the first two deeds were executed, but prior to the acquisition of title by defendant. The court, after reviewing several of the English cases hereinbefore cited and the New Jersey case of Hartwell v. Camman (supra), reached the conclusion that the term "mineral ores" used in the first deed did not include granite; that the words "minerals and ores" used in the second deed, standing alone, would include granite; that it would be an unwarrantable limitation to exclude from the operation of the grant beds of coal or other nonmetallic mineral deposits of commercial value, or to confine it to such minerals as were known or supposed to be on the premises at the time. But the court held that the

1 Westmoreland & Cambria Nat. Gas Co. v. De Witt, 130 Pa. 235. 2 Armstrong v. Lake Champlain Granite Co., 42 N. E. Rep. 186.

context of the second deed conveying the "mineral and "ores" limited the grant to such minerals as could be obtained by underground workings; and as granite is not so obtained, it did not pass under the conveyance.

The court also held that the meaning of the words "minerals and ores" in a deed could not be limited or explained by declaration of the parties thereto as to what was intended to be covered by the deed, reformation thereof not being sought.

The foregoing line of authorities serves to illustrate the views of the various courts of the United States in dealing with the terms "mines" and "minerals" in cases having no connection with the various acts of congress which we are called upon to construe. In interpreting these acts it cannot be demonstrated that either the English or American cases have been an appreciable factor, or have been either cited or relied upon as precedents; yet it is manifest that they have exerted some influence, and that we shall observe their earmarks as we progress.

294. "Mineral lands," as defined by the American tribunals.—In a preceding section it has been assumed that the term "mineral lands" is sufficiently comprehensive to embrace the various kindred designations found in the various acts of congress, and that these various terms may be, and frequently are, used interchangeably. Upon this assumption, let us consider what is meant by the term. "mineral lands" and its legal equivalents.

On this subject there has been great uniformity of decision by those courts of the states and of the United States which have had the most frequent occasion to consider the subject, and by the land department."

The supreme court of California as early as 1864 gave its views upon the question in a well-considered case, the earmarks of which may be plainly observed in many, if

1 See, ante, 2 86.

2 Davis v. Weibbold, 139 U.S.507.

3 Ah Yew v. Choate, 24 Cal. 562.

not all, the subsequent decisions bearing upon the subject. It thus presented its views:

"It is not easy in all cases to determine whether any given piece of land should be classed as mineral land or "otherwise. The question may depend upon many circumstances: such as whether it is located in those regions "generally recognized as mineral lands or in a locality. ordinarily regarded as agricultural in its character. "Lands may contain the precious metals, but not in suffi"cient quantities to justify working them as mines or "make the locality generally valuable for mining purposes, "while they are well adapted to agricultural pursuits; or "they may be poorly adapted to agricultural or grazing pursuits, but rich in minerals, and there may be every gra"dation between the two extremes. There is, however, no "certain, well-defined, obvious boundary between the min"eral lands and those that cannot be classed in that category. Perhaps the true criterion would be to consider "whether, upon the whole, the lands appear to be better adapted to mining or other purposes. However that "may be, in order to determine the question, it would, at "all events, be necessary to know the condition and circum"stances of the land itself, and of the immediate locality "in which it is situated. It is the duty of the officers of "the government having the matter in charge, before mak"ing a grant, to ascertain these facts and to determine the problem whether the lands are mineral or not."

It

In a later case,' construing the mineral reservation in the Pacific railroad acts, the same court determined as follows:"The mere fact that portions of the land contained par"ticles of gold or veins of gold-bearing quartz rock would "not necessarily impress it with the character of mineral "land, within the meaning of the acts referred to. "must, at least, be shown that the land contains metals in quantities sufficient to render it available and valuable "for mining purposes. Any narrower construction would "operate to reserve from the uses of agriculture large tracts "of land which are practically useless for any other purpose, "and we cannot think this was the intention of congress."

1 Alford v. Barnum, 45 Cal. 482.

2 The use of the term "metals" in this connection is of no controlling importance. It was undoubtedly used without any design to restrict the meaning of the word "mineral" to metallic substances.

This case was cited approvingly by the supreme court of the United States, and the general rule of interpretation thus enunciated:

"The exceptions of minerals from pre-emption and set"tlement, 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 improve"ment, 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 "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 "the expense of their exploitation. It is not to such lands. "that the term 'mineral,' in the sense of this statute, is applicable."

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The mere fact that the land contains "copper, gold and silver-bearing quartz" does not impress it with the character of mineral land within the meaning of the act of congress excluding mineral lands from the grant to the Central Pacific railroad. Only lands valuable for mining purposes are reserved from sale."

In United States v. Reed," before the circuit court for the district of Oregon, a bill was filed by the United States to set aside a patent issued upon a homestead entry, on the ground that the land was mineral, and not agricultural, and was at the date of entry more valuable for mining than for agricultural purposes, and was so to the knowledge of the patentee. Judge Deady, in disposing of the question, said:

"The nature and extent of the deposit of precious "metals, which will make a tract of land mineral, or con"stitute a mine thereon within the meaning of the statute, "has not been judicially determined. Attention 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.

1 Davis v. Weibbold, 139 U. S. 507.

2 Merrill v. Dixon, 15 Nev. 401.

3 12 Saw. 99-104.

"more for agriculture than mining, it is not mineral land, although it may contain 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."

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In Dughi v. Harkins,' 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 surveyor-general. In disposing of it, Secretary Teller, in a communication to the commissioner of the general land office, said:—

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"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 minerals 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 your office in deciding upon the char"acter of this class of land. Nor is it sufficient that the "mineral claimant shows that the land is of little agricul"tural value. He must show affirmatively, in order to "establish his claim, that the mineral value of the land is greater than its agricultural value.""

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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 12 Land Decisions, p. 721.

2 Quoted in Davis v. Weibbold, 139 U. S. 507.