An order of withdrawal takes effect on the day of its date, not on the date notice is received at the local office.1 As was said by Judge Bellinger, sitting as circuit judge for the district of Oregon, the reservation of these lands is an appropriation to a special public use, and is therefore a disposal of them, so far as the public domain is concerned. Reservations of this class may be restored to the public domain by executive proclamation, without special authority of congress.3 198. Status of mining claims within forest reservations. The rules heretofore enunciated with reference to mining claims within Indian and military reservations. apply with equal force to forest reservations. However, the proclamation itself provides specially for preserving the status of mining claims valid and subsisting at the date of the withdrawal. All the proclamations creating forest reservations, with one or two exceptions, contain the following clauses: "Excepting from the force and effect of this proclama"tion all lands which may have been prior to the date "hereof embraced in any legal entry, or covered by any "lawful filing, duly of record in the proper United States "land office, or upon which any valid settlement has been "made pursuant to law, and the statutory period within "which to make entry or filing of record has not expired; "and all mining claims duly located and held according to "the laws of the United States and rules and regulations "not in conflict therewith. 66 Provided, that this exception shall not continue to apply "to any particular tract of land, unless the entryman, settler, "or claimant continues to comply with the law under which "the entry, filing, settlement, or location was made." In some instances congress has opened forest reservations for the location of mining claims. An act of this character was passed at the first session of the fifty-fourth congress (February 26, 1896), which provides that the 1 In re Zumwalt, 20 L. D. 32; Currie v. State of California, 21 L. D. 134. 2 United States v. Tygh Valley L. & S. Co., 76 Fed. 693. 3 Opinion of Asst. Atty-Gen. Shields, 14 L. D. 209. Pike's Peak, Plum Creek, and South Platte forest reservations, in Colorado, "Shall be open to the location of mining claims therein "for gold, silver, and cinnabar, and that title to such min ing claims may be acquired in the same manner as it may "be acquired to mining claims upon the other mineral "lands of the United States for such purposes; provided, "that all locations of mining claims heretofore made in "good faith within said reservation, and which have been "held and worked in the same manner as mining claims "are held and worked under existing law upon the public “domain, are validated by this act." And, by a subsequent section, the right to cut timber from such claim for actual mining purposes was authorized. In the absence of such permission of congress no mining claim can be located within the limits of a forest reservation after the date of withdrawal or proclamation.' ARTICLE IX. HOMESTEAD AND 211. Timber and stone lands. 206. Location of mining claims 2202. Introductory. We have no particular concern with the manner of of acquiring title to lands of the public domain, other than those falling within the purview of 1 By an act of congress, passed May 14, 1896, the secretary of the interior is empowered to permit the use of a right of way to the extent of twentyfive feet, with the use of necessary ground, not exceeding forty acres, within forest reservations, for the purpose of generating, manufacturing, and distributing electric power. the mining laws, except in so far as the administration of the public land system requires the adjustment of controversies between mineral claimants and those asserting privileges under the homestead and other laws applicable to public lands which are non-mineral in character. Incidentally, we are called upon to investigate the general scope of the latter class of laws, the character of lands to which they relate, the rules governing the determination of conflicts arising between mineral and other claimants, and the point of time in the proceedings seeking the transmission of title when these controversies are to be finally determined. 2203. Classification of laws providing for the disposal of the public lands.-The existing laws providing for the disposal of the public domain may be thus classified :— (1) Those regulating the acquisition and enjoyment of rights upon public mineral lands, including in this designation laws applicable to coal and salines; (2) The townsite laws; (3) The homestead laws; (4) Laws regulating the sale of lands chiefly valuable for timber or stone; (5) Laws applicable to desert lands; (6) The appropriation of lands by "covering" with bounty land warrants, agricultural college, private land, and other classes of "scrip." The pre-emption laws which, in one form or another, existed from an early period of our history until March 3, 1891, were repealed on that date,' and no longer form a part of our public land system, except so far as may be necessary to preserve and perfect rights accruing prior to the passage of the repealing act. The timber-culture laws, originally enacted March 3, 1873, a substitute for which was passed June 14, 1878," 126 Stats. at Large, 1093. 217 Stats. at Large, 605. 320 Stats. at Large, 113. were abrogated by section one of the same act, which effected the repeal of the pre-emption laws. As to sales at public auction, they are no longer permitted,' except in cases of abandoned military or other reservations, isolated and disconnected fractional tracts authorized to be sold by section twenty-four hundred and fifty-five of the Revised Statutes, and other lands under special acts having local application. Since March 2, 1889, with the exception of lands in the state of Missouri and in other specified localities, no sales or locations at private entry are allowed.3 As to the townsite laws, we have in a preceding article fully discussed their provisions, and it is unnecessary to further consider them. 4 For the purposes announced in the introduction to this article, we need devote our attention only to those branches of the public land system which deal with homesteads, timber and stone lands, desert lands, and scrip locations. For certain illustrative purposes, we may also include in the category deserving consideration, the repealed pre-emption laws. 2204. Manner of acquiring homestead claims. The homestead laws secure to the head of a family, of lawful age, who is a citizen of the United States, or who has declared his intention to become such, the right to settle upon, enter, and acquire title to not exceeding one hundred and sixty acres of unappropriated non-mineral public lands, by establishing and maintaining residence thereon, and improving and cultivating the land for the continuous period of five years." To obtain an inceptive right to a homestead, the appli 'Act of March 3, 1891, 23 9, 10; 26 Stats. at Large, 1099. 225 Stats. at Large, 854. $ Id. 'See, ante, art. v., 22 166-177. 5 Rev. Stats., ? 2302.. 2289, as amended by act of March 3, 1891, 25; 26 Stats. at cant files with the register of the local land office an application, stating his qualifications, and describing the land he desires to enter. If it appears from the tract-books that the land is of the character subject to entry under the law, and is clear-that is, unappropriated,- the applicant is permitted to make entry of the land; the receiver of the land office issues a receipt for the fees paid for filing the application, a record is made in the local office, and the fact reported to the general land office. If the lands are returned as mineral, and borne on the tract-books as such, the homestead claimant will not be permitted to initiate his right until a hearing is had for the purpose of determining the character of the land. To use the common expression, the mineral must be "proved off," before any right to the land can be inaugurated under the agricultural land laws. Whatever may be the effect of the surveyor-general's return as evidence in litigated cases involving the character of the land,' the land officers in administering the land laws accept such return as controlling their action in the first instance. 205. Nature of inceptive right acquired by homestead claimant. It would seem that the estate acquired by a homestead claimant who has filed his application and received his preliminary receipt from the receiver of the land office, is of greater dignity than that acquired by filing a declaratory statement under the pre-emption laws. By the pre-emption laws the United States did not enter into any contract with the settler, or incur any obligation. that the land occupied by him should ever be offered for sale. They simply declared that, in case their lands were thrown open for sale, the privilege to purchase should be first given to parties who had settled upon and improved them." 1See, ante, ?? 105, 106, 107. Frisbie v. Whitney, 9 Wall. 187; Hutchins v. Low (Yosemite Valley Cases), 15 Wall. 77; Campbell v. Wade, 132 U. S. 34; Black v. Elkhorn M. Co., 49 Fed. 549. |