Public land covered by a pre-emption filing, as to which there has been no payment made or final certificate issued, may be appropriated by congress to public purposes, or otherwise disposed of, without infringing any legal right held by the pre-emptioner. In an opinion of Attorney-General McVeagh, given at the request of the secretary of war,' it was stated, that upon the "entry" by the homestead claimant at the local land office, a right in his favor would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation; that this right amounts to an equitable interest in the land, subject to the future performance by the settler of certain conditions, and until forfeited by failure to perform the conditions, it must prevail, not only against individuals, but against the government; that, in contemplation of the homestead law, the settler acquires an immediate interest in the land, which, for the time being at least, becomes severed from the public domain. The land department has invariably acted upon this theory; and the supreme court of the United States has given its sanction to the rule that such an entry, so long as it remains subsisting, is such an appropriation of the tract as segregates it from the public domain. Innumerable filings under the pre-emption laws have been accepted for the same tract by the land office; but from the moment a homestead entry is accepted and the preliminary receipt issued, no further applications or filings for the tract are permitted, so long as the entry remains uncanceled. Although the land may be in fact mineral in character, and a mining claim be located thereon, no application to patent such mining claim will be received by the land officers until a hearing is had to determine the character of the land.3 12 Copp's Pub. Land Laws, 1198. 'Hastings etc. R. R. v. Whitney, 132 U. S. 357, 364; Kan. Pac. Ry, v. Dunmeyer, 113 U. S. 629. Hooper v. Ferguson, 2 L. D. 712. If the land be found at such hearing to be mineral in character, a cancellation pro tanto of the homestead entry will be ordered, and the mineral lands will be segregated, whereupon the mineral applicant may proceed to patent. ? 206. Location of mining claims within homestead entries. As lands which are essentially mineral in character cannot be the subject of appropriation under the homestead laws, but may be appropriated under the mining laws, an entry within the limits of a homestead claim, for the purpose of initiating a mining right, may be made at any time prior to the issuance of the final certificate to the homestead claimant, if such entry be made in good faith and without force or violence. The principles of law applicable to such cases will be found presented in the article dealing with "Townsites,"1 and the one treating of “Occu"pancy without color of title." It will be unnecessary to here repeat what is there said. 2207. Proceedings for the determination of the character of the land. As heretofore indicated, a mineral claimant may take the initiative in securing an investigation as to the character of the land covered by a homestead filing for the purpose of clearing the records and enabling him to proceed to his patent. Should this be not done, the determination of the quality and character of the land necessarily arises at the time the homestead claimant presents his application to make final proof for the purpose of obtaining his patent. The practice governing these proceedings is controlled by the regulations prescribed by the secretary of the interior, and will be found in the appendix to this treatise. Provisions are made for citing the interested parties to appear before the local land officers, where testimony may be adduced in support of their respective contentions. In these proceedings the return of the surveyor-general is prima facie evidence of the character of 1 See, ante, art. v., 22 166-177. 3 See, ante, 205. the land, and the burden of proof rests upon him who seeks to contradict the return. The mineral character of the land must be established as a present fact.' The question is really one of comparative value — Is the tract more valuable as a present fact for the mineral which it contains than for agricultural purposes?? We have heretofore endeavored to formulate such rules for the determination of this question as seem to fall within the sanction of the law as determined by the courts and the land department. These rules will be found stated in a previous chapter, and further repetition is unnecessary. The land sought to be subjected to the operation of the mining laws must be mineral in fact, and not in theory. A tract of land containing mineral products in quantities sufficient to justify a prudent man in the expenditure of time and money in extracting or developing it is mineral in fact; but the law cannot be subverted to gratify a mere whim. While the mining interests are entitled to and must receive protection against the encroachments of persons who, under the guise of agricultural claimants, seek to secure title to large tracts of mining land, the rights of bona fide homestead claimants to lands clearly agricultural in character are also entitled to the same protection against adverse combinations of miners.5 The question of the character of land is always one of fact; and the decisions of the land department upon questions of fact in cases clearly within its jurisdiction are conclusive." Hamilton v. Anderson, 19 L. D. 168; Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Dughi v. Harkins, 2 L. D. 721; Cleghorn v. Bird, 4 L. D. 478; Roberts v. Jepson, Id. 60. See, ante, 22 94, 98. Davis v. Weibbold, 139 U. S. 507; United States v. Reed, 28 Fed. 482; Ah Yew v. Choate, 24 Cal. 562; Mitchell v. Brown, 3 L. D. 65; Magalia G. M. Co. v. Ferguson, Id. 234; Peirano v. Pendola, 10 L. D. 536; Tinkham v. McCaffrey, 13 L. D. 517; Winters v. Bliss, 14 L. D. 59; Savage v. Boynton, 12 L. D. 612; Walton v. Batten, 14 L. D. 54. 3 Tit. III., ch. i., ¿? 94-98. See, ante, 2 98. 5 Kenna v. Dillon, Copp's Min. Dec. 93. 6 Parley's Park v. Kerr, 130 U. S. 256; Pac. M. & M. Co. v. Spargo, & Saw. €45; Cowell v. Lammers, 10 Saw. 248, 257; Barden v. N. P. R. R., 154 The courts will not interfere with the officers of the government while in the discharge of their duties in disposing of the public lands.1 208. When decision of land department becomes final. Before final certificate issues, a homestead entry is open to attack on the ground that the land embraced therein is mineral in character, without regard to the date of the alleged discovery." The submission of final homestead proof will not preclude a hearing as to the subsequent discovery of mineral upon the land involved where final certificate is not issued and the general land office requires new proof to be made.3 Any intermediate determination of the character of the land which does not result, and which is not intended to result, in its final disposal to one claimant or the other, does not preclude subsequent investigation on the part of the department as to the character of such land, inasmuch as the department retains jurisdiction to consider and determine the character of the land claimed until deprived thereof by the issuance of the patent." A decision of the department in such intermediate proceedings, holding a tract to be non-mineral, is conclusive up to the period covered by the hearing; but such decision will not preclude a further consideration, based on subsequent exploration." U. S. 288; United States v. Winona & St. P. R. R., 67 Fed. 948; Lee v. Johnson, 116 U. S. 48; Johnson v. Towsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 646; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473; Vance v. Burbank, Id. 514; Quinby v. Conlan, 104 U. S. 420; St. Louis Smelting Co. v. Kemp, Id. 636; Steel v. St. Louis Smelting Co., 106 U. S. 447; Baldwin v. Stark, 107 U. S. 463; United States v. Minor, 114 U. S. 233; Grant v. Oliver, 91 Cal. 158; Shanklin v. McNamara, 87 Cal. 371; Powers v. Leith, 53 Cal. 711; Hays v. Steiger, 76 Cal. 555; Hess v. Bolinger, 48 Cal. 349; Caldwell v. Bush, 45 Pac. 488. 1 Litchfield v. The Register, 9 Wall, 575; Gaines v. Thompson, 7 Wall. 347; Cox v. McGarrahan, 9 Wall. 298. 2 Jones v. Driver, 15 L. D. 514. 3 Spratt v. Edwards, 15 L. D. 290. 4 Searle Placer, 11 L. D. 441. 5 Stinchfield v. Pierce, 19 L. D. 12; McCharles v. Roberts, 20 L. D. 564; Dargin v. Koch, Id. 384. When the land has once been adjudged to be mineral, if subsequent development prior to patent demonstrates that the mineral then found has disappeared, or that it is worthless and unprofitable to work as a mining claim, and abandoned as such, it is not in any sense a readjudication of the former issues.1 As was said by the department, in cases of railroad grants, a hearing had as to the agricultural or mineral character of a number of tracts of land claimed under a railroad grant, and a judgment thereon that a specific tract included therein is in fact agricultural, will not preclude a subsequent inquiry as to the character of such tract on the protest of a mineral claimant prior to the issuance of patent therefor, if the showing is clear and convincing." We see no reason why the rule thus announced should not be applied to all classes of entries. So long as the land department retains jurisdiction over the land, it may prevent the patenting of mineral lands under agricultural laws, and vice versa. This jurisdiction does not cease until the patent has actually issued.3 Lands duly and properly entered for a homestead under the homestead laws are, and continue to be, from the time. of entry and pending proceedings before the land depart. ment, lands of the United States until patent is issued.* The patent, when issued, is the judgment of a tribunal charged under the law with investigating the facts, and thereafter the character of the land is no longer open to contestation. The final certificate issued by the receiver of a United States land office after the submission of final proof and payment of the purchase price, where such is required, has been repeatedly held to be the equivalent of a patent. The holder of such certificate is vested with the complete 1 Dargin v. Koch, 20 L. D. 384. Barnstetter v. C. P. R. R., 21 L. D. 464. See, also, Zadig v. C. P. R. R., 20 L. D. 26. 3 Searle Placer, 11 L. D. 441; Wingate Placer, 22 L. D. 704. 4 Shiver v. United States, 159 U. S. 491. |