We regret that this last suggested rule is in conflict with the decision of the supreme court of the state of Washington (in the case of Wheeler v. Smith),' wherein that court seeks to limit the meaning of the term "mineral," as used in the congressional mining laws, to metallic substances. In so doing the court treats the rulings of the land department as possessing no force or virtue, and refuses to adopt the reasoning and conclusions reached in a parallel case by the supreme court of Montana, a court noted for its experience and ability in dealing specially with mining questions and controversies arising out of the mining laws. This decision of the supreme court of Washington also conflicts with a number of carefully considered American cases, which will be noted when we come to enumerate the various substances which have been held to be within the reasonable definition of the term "min"eral."

297. Substances held to be mineral by the land department.-Lands containing the following substances have been held by the land department to fall within the designation of mineral lands, and as such to be subject to entry under the mining laws:

2 Freezer v. Sweeney, 21 Pac. 20; 8 Mont. 508.

3 Copp's Min. Lands, 50. See, also, Gesner v. Gas Co., 1 James, N. S. 72; Gesner v. Cairus, 2 Allen, N. B. 595.

Copp's Min. Lands, 160; Com'rs' Letter, 1 Copp's L. O. 179; A. A. Dewey, 9 Copp's L. O. 51. See, also, Thompson v. Noble, 3 Pittsb. 201; Gill v. Weston, 110 Pa. St. 313; Gird v. California Oil Co., 60 Fed. 531. Contra: Ex parte Union Oil Co., 23 L. D. 222; Chandler v. State of California, Id., October 27, 1896.

5 Copp's Min. Lands, 50, 100; 2 Land Decisions, 707.

6 Copp's Min. Lands, 50; 2 Land Decisions, 707.

7 Copp's Min. Lands, 121; Id. 176; 1 Land Decisions, 578.

*Copp's Min. Lands, 182.

Salt lands are classified as mineral, and held to be reserved from railroad grants: " and originally the department permitted them to be acquired under the mining laws; but this was subsequently overruled.13

12

Other than the decisions and rulings of the land department, we encounter a limited number of cases involving specific substances. This is easily accounted for. The 1 Copp's Min. Lands, 161.

2 Id. 309.

310 Copp's L. O. 50; 12 Land Decisions, 1; Shepherd v. Bird, 17 L. D. 82: Copp's Min. Lands, 176; Id. 309. See, also, Freezer v. Sweeney, 21 Pac. 20; 8 Mont. 508. Contra: Wheeler v. Smith, 32 Pac. 784.

Copp's Min. Lands, 176.

5 Id. 88.

6 Montague v. Dobbs, 9 Copp's L. O. 165.

7 Gary v. Todd, 18 L. D. 58. But see S. C. on review-19 L. D. 475. And held not to be mineral within the meaning of reservation in railroad grants: Tucker v. Florida Ry. & N. Co., 19 L. D. 414.

* Conlin v. Kelly, 12 L. D. 1, overruling In re Bennet, 3 L. D. 116; McGlenn v. Weinbroeer, 15 L. D. 370; Vandoren ». Plested, 16 L. D. 508; Delaney, 17 L. D. 120.

But held not to be excepted as mineral from grant to a state: South Dakota v. Vermont S. Co., 16 L. D. 263.

The passage of the act of 1892 (Sup. to Rev. Stats., vol. ii., p. 65) removes all future controversy on the subject, and permits lands containing these substances to be entered as mineral lands.

9 McKean v. Buell, Copp's Min. Lands, 343; Townsite of Coalville,

4 Copp's L. O. 46; In re Norager, 10 Copp's L. 0. 54.

Coal, however, is disposed of under special laws, and will be separately considered in another portion of this treatise.

10 Copp's Min. Lands, 143.

"Eagle Salt Works, Copp's Min. Lands, 336.

12 Copp's Min. Lands, 333.

137 Land Decisions, 549.

Salines are not subject to disposal under the mining laws. The policy of the government with reference to this character of lands and the laws regulating their disposal will be separately considered in another portion of this treatise.

land department is the tribunal specially charged with the determination of the character of lands falling within the purview of the laws considered in this treatise. This question being one of fact, the determination by the department culminating in the issuance of a patent is conclusive, and not open to collateral attack. Such controversies therefore rarely find their way into the courts. In a succeeding chapter, treating of placers and other deposits, will be found cited the few cases which we have been able to discover upon the subject.

298. Rules for determining mineral character of land. -While it is difficult to formulate a definition sufficiently comprehensive in itself to cover all possible exigencies, we think that a conservative application of the rules governing statutory construction, heretofore enumerated in connection. with the adjudicated cases and rulings of the land department, permits us to deduce the following:

The mineral character of the land is established when it is shown to have upon or within it such a substance as(a) Is recognized as mineral, according to its chemical composition, by the standard authorities on the subject;

or

(b) Is classified as a mineral product in trade or com

(c) Such a substance (other than the mere surface which may be used for agricultural purposes) as possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts;

And it is demonstrated that such substance exists therein or thereon in such quantities as render the land more valuable for the purpose of removing and marketing the substance than for any other purpose, and the removing and marketing of which will yield a profit; or, it is established that such substance exists in the lands in such quantities as would justify a prudent man in expending labor and capital in the effort to obtain it.

102. No general classification of lands as to their character. No general systematic classification of the public lands, according to their mineral or non-mineral character, for the purpose of sale or other disposal, has ever been attempted.

Geological examination and survey of lands in the Lake Superior district, and in the Chippewa land district, in Wisconsin, were provided for by acts of congress, passed in 1847.'

These acts conferred authority on the president to sell at public auction such land as contained copper, lead, or other valuable ores, at the minimum price of five dollars And such examination and survey were for the purpose of establishing the character of the lands in these regions, for the express purpose of sale as mineral lands.

per acre.

But three years later (September 26, 1850), this policy was abandoned, and this class of lands in these districts was directed to be sold in the same manner, at the minimum price, and with the same rights of pre-emption as other public lands."

1 March 1, 1847, 9 Stats. at Large, 146; March 3, 1847, Id. 179.
2 Public Domain, 308-309.

103. Geological surveys.-Since then extensive geological surveys have been and are now being made in various parts of the United States; but although these surveys are conducted under the supervision of the depart. ment of the interior, and are of great economic as well as scientific value, the results obtained perform no function in the public land system, are not noted in the tract-books in the different land offices, and are not necessarily considered in determining the mineral or non-mineral character of the land embraced within the limits of the geological survey.

104. General system of land surveys. It is a matter of common knowledge that the public lands are ordinarily surveyed into rectangular tracts, bourded by lines conforming to the cardinal points. These surveys are made under the immediate supervision of the United States surveyors-general in their respective surveying districts. The actual surveys in the field are conducted by deputies appointed by the surveyors-general, to whom all reports are primarily made.

In prosecuting work in the field, the deputies are charged with the duty of noting at the end of their notes of survey coal banks or beds, peat or turf grounds, minerals, and ores, with particular description of the same as to quality and extent, and all "diggings" therefor; also, salt springs and licks, together with a general description of the township in the aggregate, as respects the face of the country, its soil and geological features, timber, minerals, water, and the like.'

2105. What constitutes the surveyor-general's return. The original field-notes and accompanying data, with a topographical sketch of the country surveyed, are returned to the surveyor-general, who examines them, and, if found correct, approves them, whereupon the draughtsman protracts the same on township plats in triplicate.

1 Instructions to surveyors-general, Public Domain, 575 et seq.