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.1

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 ex"traction. 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 the exception stated. There has been no direct adjudication on this point by this court, but this conclusion is a legiti"mate inference from several of its decisions. It was im"plied in the opinion in Deffeback v. Hawke, 115 U. S. 392; "and in the cases of Colorado C. & I. Co., 123 U. S. 307; "United States v. Iron S. M. Co., 128 U. S. 673."

295. Interpretation of terms by the land department.— 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

1 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.

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 Drummond1 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 con"clusion I reach as to what constitutes a 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, 1872.2

"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 deter"mined 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 sufficient quantities to "make the same more valuable for mining than for agri"culture. . . .

"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 there"from; that it is not enough to show that land in the neighborhood, or adjoining lands, are mineral in charac"ter, 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.3

"It is contended that the mining statutes provide that "in an ex parte case, 'land containing gold in any 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 66.6 locator or claimant.' . . .

1 Circ. of Instructions, July 15, 1873.

2 Copp's Min. Dec., p. 317; W. H. Hooper, 1 L. D. 561.

"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 patent. Should the question of the character of the land be properly pre"sented 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 character of the land to be taken under this "law. In any event, it must contain valuable deposits.'

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The proof of the mineral character of the land must "be specific, and based upon the actual production of min"eral; 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 minerals 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.""

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 explorations. 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 mineral claimants alone, it sustains the "conclusion that it is there in paying quantities."

1 Royal K. Placer, 13 L. D. 86.

2 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. Marsh (1892), 15 L. D. 196.

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"When the development, and its results, display such promise that the prudent, reasonable man would be jus"tified in expending money and labor in legitimate mining operations, untainted by an appearance of speculation, "the land must be held mineral within the meaning of that "term as used in the granting act. (Pacific railroad acts.) "If it was held otherwise, the mining industry, so far as it "pertained to odd sections within the grant, would be paralyzed. The rule is that paying mines are only shown to "exist after years of labor and much money expended in the "development. Prospectors do not find riches on the sur"face. Profit is not received from the grass-roots down. "They must have an opportunity given them to open the "mine as their means permit."

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"After a careful consideration of the subject, it is my opinion that where minerals 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 requirements of "the statute have been met. To hold otherwise would. "tend to make of little avail, if not entirely nugatory, that provision of the law whereby all valuable mineral deposits in lands belonging to the United States . . "are. . . declared to be free and open to exploration and purchase.' For, if as soon as minerals are shown to "exist, and at any time during exploration, before the "returns become remunerative, the lands are to be subject to "other disposition, few would be willing to risk time and "capital in the attempt to bring to light and make avail"able the mineral wealth which lies concealed in the bowels "of the earth, as congress obviously must have intended "the explorers should have proper opportunity to do.""

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In determining what constitutes mineral land within the meaning of the acts of congress, we have treated the subject generally, without regard to the form in which the mineral deposits occur-i. e. whether "in place," as in quartz veins, or not "in place," as in case of auriferous gravels, clays, and other substances usually encountered in horizontal beds or isolated deposits. What constitutes a vein, or lode, or whether a given character of deposit may

1 Casey v. N. P. R. R., 15 L. D. 439.

2 Castle v. Womble, 19 L. D. 455; Goldstein v. Juneau Townsite, 23 L. D. 353.

be located and acquired as "in place," or not "in place," will be discussed under appropriate heads in other portions. of this work. The rulings cited and definitions quoted apply equally to all forms of deposit.

96. American rules of statutory interpretation.—In addition to the ordinary canons of statutory interpretation, there are certain recognized rules applicable to the acts of congress which are within the scope of this treatise. These may be briefly enumerated as follows:

(1) The mining laws are to be read in the light of matters of public history, relating to the mineral lands of the United States;1

(2) Where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, that construction should be adopted which will support the claim of the government rather than that of the individual; 2.

(3) In the case of a doubtful or ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect, and ought not to be overruled without cogent reasons.3

We might add a fourth rule, deducible from the foregoing, and from the current of American authority and decisions of the land department, and that is, that the word "mineral," as used in these various acts, should be understood in its widest signification. We do not conceive that there is anything in the context of the several acts, or in their nature, to restrict its meaning. This is practically the English rule announced by Mr. Ross Stewart, which has heretofore been referred to, and which is amply supported by the highest English authority.

1 Jennison Exr. v. Kirk, 98 U. S. 453.

2 Slidell v. Grandjean, 111 U. S. 412; Leavenworth L. & G. R. Co. v. United States, 92 U. S. 733; Barden v. N. P. R. R., 154 U. S. 228.

& United States v. Moore, 95 U. S. 760; Brown v. United States, 113 U.

S. 568; Barden v. N. P. R. R., 154 U. S. 228.

See, ante, ? 91.