equitable title; and after its issuance the government holds the dry legal title for the benefit of such holder.'

Such certificate having been once issued upon a perfected final agricultural entry, no subsequent discovery of mineral can defeat the title of the holder."

While such certificate, so long as it remains uncanceled, possesses the force of the patent, yet the power of supervision by the commissioner of the general land office over the acts of the register and receiver of the local land office in the disposition of the public lands undoubtedly authorizes him, in proper cases, to correct and annul entri es of land allowed by them. The exercise of such power is necessary to the administration of the land department.3

If the proceedings before the register and receiver are defective, or the proofs insufficient or fraudulent, or the jurisdictional facts wanting, the certificate may afterwards be canceled by the commissioner or secretary of the interior; or the entry may be suspended, a hearing ordered, and the party notified to show, by supplemental proof, a full compliance with the law, and on failure to do so, the entry may then be canceled.1

An agricultural entry covering land that is mineral in character, with the knowledge of prior mineral locations thereon, and of the fact that the land was at such time regarded by many in the vicinity as valuable for the mineral therein, must be canceled, as having been allowed for "known" mineral land."

1 Witherspoon v. Duncan, 4 Wall. 210; Carroll v. Safford, 3. How. 441; Wis. R. R. v. Price Co., 133 U. S. 496; Cornelius v. Kessel. 128 U. S. 456; Deffeback v. Hawke, 115 U. S. 392; Benson M. & S. Co. v. Alta M. & S. Co., 145 U. S. 428; Hamilton v. Southern Nev. G. & S. M. Co., 13 Saw. 113; Amador Medean Co. v. S. Spring Hill Co., Id. 523; Aurora Hill Cons. ". 85 M. Co., 12 Saw. 355; Pac. Coast M. & M. Co. v. Spargo, 8 Sa w. 645;

Deno v. Griffin, 20 Nev. 249.

"Pac. Coast M. & M. Co. v. Spargo, 8 Saw. 645; Arthur ». L. D. 92: Rea v. Stephenson, 15 L. D. 37.

Earle, 21

3 Harkness v. Underhill, 1 Black, 316; Knight v. U. S. Land Assn., 12 U. S. 161; Cornelius v. Kessel, 128 U. S. 456, 461; Ger. Ins. Co. v. Hayden,

21 Colo. 127.

4 Hastings etc. R. R. v. Whitney, 132 U. S. 357, 364; Caldwell v. Bush, 45 Pac. 488; Hosmer v. Wallace, 47 Cal. 461; Hays v. Steiger, 76 Cal. 555Co. v. Williams, 23 L. D. 34.

* Aspen Cons. M.

When such certificate is suspended, it cannot be used as evidence so long as the suspension continues.' Its cancellation, of course, deprives it of all force.2

This power of supervision and correction, however, is not an unlimited or arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered.3

Generally speaking, and for all practical purposes, the issuance of the final certificate to an agricultural entryman closes the case, and no collateral attack on the certificate so issued is allowed.

The land embraced in such final entry is absolutely withdrawn from the public domain, and is no longer subject to exploration or purchase under the mining laws, although it may subsequently appear that the lands are essentially mineral. Where a contest is pending, as a rule the certificate does not issue until final disposal is made, on appeal to the commissioner, and from him to the secretary, if such appeals be taken. Under ordinary circumstances, the supervision of the general land office at Washington is confined to an examination of the record as made in the local offices, for the purposes of ascertaining whether the facts presented justify the conclusions reached, the requisite jurisdictional facts appearing.

2209. The reservation of "known mines" in the preemption laws.- We have heretofore said that the term "known mines," as used in the pre-emption act of 1841, is not the precise equivalent of the term "mineral lands," as used in the mining laws, and should undoubtedly receive a more limited interpretation. It will be borne in mind that when this pre-emption act was passed the only mines of which the government had any knowledge were those

1 Figg v. Handley, 52 Cal. 295; Vance v. Kohlberg, 50 Cal. 346; Vantongeren v. Heffernan, 5 Dak. 180, 226; Hestres v. Brennan, 50 Cal. 211; United States v. Steenerson, 50 Fed. 504.

Murray v. Polglase, 17 Mont. 455.

3 Cornelius v. Kessel, 128 U. S. 456, 461. *See, ante, 86, p. 92.

containing copper, in the region of the great lakes, and those containing lead, in the Mississippi valley.1

The privilege of pre-emption during that period could be exercised only as to surveyed lands, and the public surveys had not been extended west of the Mississippi river. The government had at that time inaugurated a policy of leasing lead mines, and it is probable that the framers of these earlier laws had particular reference to those which came within the category of opened mines. In construing the term "known mines," as used in this law, which was subsequently re-enacted in later acts, the supreme court of the United States announced its opinion that, so far as the decision of that court had gone, no lands had been held to be "known mines," unless at the time the rights of the purchaser accrued there was upon the ground an actual and opened mine, which had been worked or was capable of being worked." Said that court, after reviewing the case of Deffeback v. Hawke: -3

"If upon the premises at that time there were not "actual'known mines' capable of being profitably worked "for their product, so as to make the land more valuable for "mining than for agriculture, a title to them acquired under "the pre-emption act can not be successfully assailed."4

We think we are justified in our view, that "known "mines" and "mineral lands" are not legal equivalents. At all events, the pre-emption laws have been repealed, and the term "known mines" has been eliminated from the statute-books. The nearest approach to an equivalent still remaining in the public land laws is the word “mine,” as used in the townsite laws, which laws have been fully discussed in a previous article."

1 See, ante, 236.

2 Colo. C. & I. Co. v. United States, 123 U. S. 307, 327.

3115 U. S. 392.

* Colo. C. & I. Co. v. United States, 123 U. S. 307, 328. See, also, Richards v. Dower, 81 Cal. 44; United States v. Reed, 28 Fed. 482; Gold Hill Q. M. Co. v. Ish, 5 Ore. 104; In re Abercrombie, 6 L.D. 393; Bellows v. Champion, 4 Copp's L. 0.17; Nancy Ann Caste, 3 L. D. 169; Harnish v. Wallace, 13 L. D. 108. 5 Rev. Stats., ? 2392.

See, ante, art. v., 2 176.

210. Timber and stone lands.-The act of June 3, 1878,' commonly called the "Stone and timber act," was originally confined in its operations to California, Oregon, Nevada, and Washington; but by an amendatory act, passed August 4, 1892, its provisions were extended to all the public land states.3

Under this act lands chiefly valuable for timber or stone, unfit for cultivation, and consequently not subject to disposal under the homestead laws, may be entered. The quantity is limited to one hundred and sixty acres to any one person.

An application to purchase under this act must be supported by evidence that the tract contains no mining or other improvements, except for ditch or canal purposes (when any such exist), nor any valuable deposit of gold, silver, cinnabar, copper, or coal.

Provisions are made for the determination of the character of the lands prior to the issuance of patents, and for the issuance of final certificates of entry upon payment.

The lands embraced within an application to purchase lands under this act are not withdrawn from the mass of the public domain until such final certificate is issued, and until that time are subject to exploration and purchase under the mining laws, if they are, in fact, mineral in character.1

The same principles of law in this respect apply to timber and stone entries as to inchoate homestead entries, discussed in preceding sections. The judgment of the department, culminating in the issuance of the final receipt or certificate, is final and conclusive as to the character of the land, and no subsequent discovery of mineral can affect the title of the purchaser. This is a universal rule governing all classes of entries on the public domain.

120 Stats. at Large, 89.

United States v. Smith, 8 Saw. 101; United States v. Benjamin, 10 Saw. 264.

327 Stats. at Large, 348.

Kaweah Colony, 12 L. D. 326.

R

With particular reference to lands chiefly valuable for building-stone, the department had held at different times that prior to passage of the stone and timber act such lands might be entered under the placer mining laws,' which practice was sustained by some of the courts, and denied by others.3

The passage of the act of August 4, 1892, however, restored this class of lands to the category of mineral lands, and henceforward they are subject to entry under the socalled placer mining laws. In the opinion of the land department, this last act did not withdraw such lands from entry under the stone and timber act, thus intimating that stone lands may be entered either as placers or under the stone and timber act, at the option of the claimant.

2211. Scrip.-There are innumerable classes of socalled land scrip-such as agricultural college, Porterfield, Valentine, Sioux half-breed, supreme court, and others in infinite variety, issued under special laws of congress, enabling the holder to "cover" unappropriated public lands, surrendering such scrip in payment for the lands sought to be entered. Mineral lands cannot be so selected or covered with any class of scrip."

Selections of land for the purpose of utilizing scrip are, of course, under the supervision of the land department, whose jurisdiction over the land is retained until the selection is finally approved, a certificate to that effect issued, and the scrip surrendered. As in case of other entries, the land department passes upon the character of the land

1 Bennett's Placer, 3 L. D. 116; McGlenn v. Weinbroeer, 15 L. D. 370; Vandoren v. Plested, 16 L. D. 508; Maxwell v. Brierly, 10 Copp's L. O. 50. See, ante, 139. Contra: In re Delaney, 17 L. D. 120; Clark v. Ervin, 17 L. D. 550; Id., 16 L. D. 122; Conlin v. Kelly, 12 L. D. 1; In re Simon Randolph, 23 L. D. 322.

2 Freezer v. Sweeney, 8 Mont.508; Johnson v. Harrington, 5 Wash. 93. 3 Wheeler v. Smith, 5 Wash. 704.

427 Stats. at Large, 348.

5 See Circ. Information, 15 L. D. 360; 23 L. D. 322.

6 In re A. V. Weise, 2 Copp's L. O. 130; In re Nerce Valle, Id. 178; Com'rs' Letter, 3 Copp's L. 0.83.