After approving the plats, the surveyor-general files the orignal in his office, the duplicate is sent to the local land office, to enable the register and receiver to dispose of the lands embraced in the several townships, and the triplicate is transmitted to the commissioner of the general land office. These approved field-notes, taken in connection with the township plats protracted in the office, constitute what is known as the surveyor-general's return.

106. Prima facie character of land established by the return. The lands embraced in the survey are treated prima facie as being of the character shown by this return, and are said thenceforward to be borne on the official records as agricultural, timber, or mineral land, according to the facts developed by the return. If lands are noted on the plat as mineral, they are prima facie mineral lands, and no entry thereof will be permitted, except under the mining laws, until the presumption arising from the return is overcome by satisfactory proofs.'

A return by the surveyor that sixteenth and thirty-sixth sections granted to the states for school purposes are mineral, and the approval of his field-notes and plats, and the filing thereof in the general land office, are a sufficient determination that the lands are mineral to authorize a selection of indemnity school lands by the state."

If the lands are not returned as mineral, the presumption obtains that they are agricultural in character, and therefore cannot be entered under the mining laws until the return is contradicted. At all inquiries held for the purpose of investigating the character of surveyed lands, this return has been said to rank as a deposition.3

It is unnecessary to say that this return is open to

1 Gold Hill Q. M. Co. v. Ish, 5 Ore. 104; Cowell v. Lammers, 10 Saw. 246; Johnston v. Morris, 72 Fed. 890; Dobbs' Placer, 1 L. D. 567; Dughi v. Harkins, 2 L. D. 721; Cole v. Markley, Id. 847; Hooper v. Ferguson, Id. 712; Roberts v. Jepson, 4 L. D. 60.

2 Johnston v. Morris, 72 Fed. 890; In re State of California, 23 L. D. 423. 3 Kirby v. Lewis, 39 Fed. 66; United States v. Breward, 16 Peters, 147; United States v. Hanson, Id. 196.

contradiction. It concludes no one. When a legal mineral location (which, of course, must be based upon a discovery) has been made, the slight presumption in favor of the return is overcome, and the burden of proof shifts to the party attacking the mineral claim. But evidence of an actual discovery is necessary. A mere location certificate will not be sufficient. The allowance of a mineral entry of a tract, as a matter of course, overcomes a return as agricultural."

While the rule which treats the surveyor-general's return as establishing prima facie the character of the land is a convenient one in controversies arising between individuals over an asserted right to enter public lands, as determining upon whom rests the burden of proof, it has been productive of iniquitous results in administering the colossal land grants to railroad companies; and we are justified in asserting that its force as a universal rule has been materially weakened, if not absolutely destroyed, by the recent decisions of both the land department and the courts of last resort.

When it is considered that sections of one mile square are the smallest tracts the outboundaries of which the law requires to be actually surveyed; that the minor subdivisions are not surveyed in the field, but are defined by law, and protracted in the surveyor-general's office on the township plats, the lines being imaginary; that surveyors, as a rule, are neither practical miners nor geologists; that they are compensated not for the volume of information furnished as to the character of the lands, but for the number of linear miles surveyed in the field; that their investigation as to the character of the land is wholly superficial,

1 Caledonia M. Co. v. Rowen, 2 L. D. 714.

2 Winscott v. N. P. R. R., 17 L. D. 274.

3 State of Washington v. McBride, 18 L. D. 199; N. P. R. R. v. Marshall, 17 L. D. 545; Sweeney v. N. P. R. R., 20 L. D. 394; Rhodes v. Treas, 21 L. D. 502.

Etling v. Potter, 17 L. D. 424; Berry . C. P. R. R., 15 L. D. 463. 5 Johns v. Marsh, 15 L. D. 196; Walton v. Batten, 14 L. D. 54. Public Domain, 184.

it would seem that but little weight should be given to these returns. If the surveyor, in subdividing a township into sections, encounters a mine in active operation, we may find some mention of that fact in his field-notes; but usually he does not go beyond this. A fair illustration of the unreliability of these returns in this respect may be found in almost all the mineral districts over which the public surveys have been extended. We note the following caustic criticism of the land department itself on this subject. In an official communication (March 11, 1872) from Mr. Drummond, commissioner of the general land office, to Mr. Delano, secretary of the interior, the commissioner says:

"To illustrate the unreliability of the surveyors' re"turns as to the character of these lands, and the absolute "necessity for the rule which, with your advice and con"sent, I have adopted, it may be proper to refer in this "connection to some of the applications for patents for "mines in California, the lands embracing which were "returned on the official township plats as agricultural in "character, the existence of mines therein not becoming "known to this office until after the receipt of such appli"cations for mining title."

(Here follows a list of thirty-five mines.)

"The foregoing claims are all within the Sacramento. district, and many more could be enumerated were it necessary to illustrate the want of reliability of the surveyor's returns as to the character of these lands. . . . "But with the kind of returns furnished it is totally "impossible to determine whether any given tract in the "mineral district is properly agricultural land within the "meaning of the law or not, or whether this office could, "with a due regard for the execution of the law, proceed "to patent such as agricultural land, without further "investigation."1

And in an earlier communication the same commissioner uses the following apt language:

"I am impressed with the conviction that it is neither "in harmony with the spirit or intent of the laws of

1 Copp's Min. Decisions, 308.

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congress, nor with the true public policy, to sanction the indiscriminate absorption of the lands in what has here"tofore been known as the reserved mineral belt in the public domain under laws only applicable to lands clearly "non-mineral, simply because the deputy surveyors failed to return the same as mineral in character. This view is "strengthened by the fact that very many, in fact the majority, of the applications for mineral patents, are found upon consulting our official township plats to be within "subdivisions not reported as mineral in character."1

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In a circular letter issued in December, 1871, to the registers and receivers of land offices in the mining regions of California, instructing them to withhold from agricultural entry a large number of townships, the same commissioner thus expresses his views:

Experience having shown that this office can not with any degree of safety judge of the character of these lands, "whether mineral or agricultural, from the data furnished "by such returns, and there being no authority of law for "the employment of a competent geologist to investigate "the matter, the head of the department has, in consid"eration of the public interests and to prevent the indis"criminate absorption of the mineral lands of the public domain through the instrumentality of insufficient returns, "found it imperatively necessary to adopt the course herein "announced, both for the protection of those who have already expended time, capital, and labor in opening and developing these mines, and those of the citizens of the "United States who may hereafter desire to exercise their legal right to do so.'

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2

In the light of these conceded facts, it is a marvel that either the land department or the courts ever announced the doctrine that such returns were prima facie evidence of anything save their own inherent weakness and insufficiency for this purpose.

The question as to the effect of these returns was before the supreme court of the United States in a recent case, in which Justice Field, delivering the opinion of the court, said:

Copp's Min. Decisions, 297. 3 Barden v. N. P. R. R., 154 U. S. 288. 2 Id. 302.

"Some weight is sought to be given by counsel of the 'plaintiff to the allegation that the lands in controversy "are included in the section which was surveyed in 1868, "and a plat thereof filed by the surveyor in the local land "office in September of that year, from which it is asserted "that the character of the land was ascertained and determined, and reported to be agricultural, and not mineral. "But the conclusive answer to such alleged determination "and report is that the matters to which they relate were not left to the surveyor-general. Neither he nor any of "his subordinates was authorized to determine finally the "character of any lands granted, or make any binding report thereon.

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"Information of the character of all lands surveyed is required of surveying officers, so far as knowledge respect"ing them is obtained in the course of their duties, but they are not clothed with authority to especially examine "as to these matters outside of their other duties, or to "determine them, nor does their report have any binding "force. It is simply an addition made to the general infor"mation obtained from different sources on the subject."

107. Character of land, when and how established. -The character of a given tract of land is always a question of fact, to be determined, generally speaking, by the land department, on hearings ordered for that purpose, or at the time patent is applied for, and the decision of the department, culminating in the issuance of a patent, is final.'

The precise point of time when the character of a given tract of land is to be determined will depend somewhat upon the nature of the right asserted, and the date to which it is supposed to relate. This subject will be fully discussed under appropriate heads, when considering the various congressional grants out of which mineral lands are reserved, and the various methods of acquiring public. lands other than mineral, and in the chapter treating of the land department and its functions.

1 Pac. M. & M. Co. v. Spargo, 8 Saw. 647; Cowell v. Lammers, 10 Saw. 255; Barden v. N. P. R. R., 154 U. S. 288; Gale v. Best, 78 Cal. 235; Dahl v. Mont. C. Co., 132 U. S. 264; Dahl v. Raunheim, Id. 260; Carter v. Thompson, 65 Fed. 329.