"improved as mineral, but not yet patented, may be held "and patented under the provisions of this act the same as "if such filing, claim, or improvement were subsequent to "the date of the passage hereof."1

This, of course, settles the question for the future. We think the act was but a legislative recognition of the law as it previously existed.

? 423. Natural gas.-Natural gas is as much an arti cle of commerce as iron ore, oil, coal, petroleum, or any other of the like products of the earth.2

"It is true," said the supreme court of Pennsylvania, "that gas is a mineral, but it is a mineral with peculiar "attributes, which require the application of precedents arising out of ordinary mineral rights, with much more "careful consideration of the principles involved than the "mere decision." 3

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It was held by the court of appeals of Ontario, that natural gas is a mineral within the meaning of a statute which gives corporations power to sell or lease mineral rights under highways; and the circuit court of the United States, for the northern district of New York, has decided, that this commodity, when brought into this country from Canada through pipes, was exempt from duty as "crude "mineral." 5

While, owing to its " fugitive and wandering existence "within the limits of a particular tract," the appropriation of it under the mining laws applicable to placers suggests an apparent absurdity, yet, as it is a mineral, is an article of commerce, and of great utility in an economic sense, we do not see why lands shown to contain it in

1 This act was approved after ? 138 of this treatise had been printed.

2 State v. Indiana & Ohio O. G. & M. Co., 2 Int. St. Com. Rep. 758. interesting note in 25 Law. Rep. Annot. 222.

See

3 Westmoreland & Cambria Nat. Gas Co. v. De Witt, 130 Pa. 235; S. C.,

5 Law. Rep. Annot. 731.

Ontario Nat. Gas Co. v. Gosfield, 18 Ont. App. 626.

5 In re Buffalo Nat. Gas Fuel Co., 73 Fed. 191.

Brown v. Vandergrift, 80 Pa. 147.

quantities sufficient to make them more valuable for that purpose than any other should not be entered under the placer laws. The difference between asphaltum, mineral tar, petroleum, and natural gas, is only one of degree.

2424. Brick clay. If lands containing kaolin, or china clay, are subject to entry under the placer laws, it is difficult to see upon what principle lands chiefly valuable for deposits of brick clay should be excepted from such entry. But Secretary Vilas held, that although a given. tract was undoubtedly more valuable as a "clay placer" than for any other purpose, it was not mineral land, and could not be appropriated under the mining laws.'

The manufactured product from a bed of brick clay is more common-place than the porcelain obtained from kaolin, or china clay, but we cannot understand why this should make any difference. The element of value in both cases rests upon the marketability of the manufactured product. Under the English decisions, brick clay is classified as a mineral under the "railway clauses act,"" and we can conceive of no logical reason why, in the administration of the federal mining laws, any discrimination should be made as between the finer and coarser grades of a substance, if it can be extracted, removed, and marketed at a profit.

425. Phosphatic deposits.-The only public land state in the Union where the phosphatic deposits occur in appreciable quantities is Florida. They have been extensively mined in South Carolina since 1868, but their existence in Florida was not known until 1887, since which time they have come into prominence, and have assumed considerable economic importance. They are, in general, most abundant in ancient river bottoms, where they have

1 Dunluce Placer Mine, 6 L. D. 761. See, also, Jordan v. The Idaho Aluminum M. & M. Co., 20 L. D. 500.

been washed together from their original beds.' Since 1890, mining has been conducted upon a large scale, the shipments constituting a heavy item in the freights of the several railroads of the state. The raw material is consumed in large quantities in the United States, and it is exported to the various parts of Europe.2

Secretary Smith held, that land chiefly valuable for phosphate deposits is mineral in character, although, under a special act of congress, a homestead claimant who had initiated a right in ignorance of the existence of such deposits within the tract might perfect his entry, notwithstanding their discovery prior to the final entry,' thus changing the rule governing ordinary mineral lands within inchoate homestead claims, announced in a previous section."

The same secretary also held, that under the land grant acts to the Florida Railway and Navigation Company, passed respectively in 1856 and 1874, lands containing this class of deposits might be selected in satisfaction of the grants. The reasons assigned are:

(1) That the act of 1856 did not in terms reserve mineral lands;

(2) That in the act of 1874, where mineral lands are reserved, the word "mineral" is used in a limited sense, and cannot be construed to include phosphates.

We have heretofore endeavored to show that this is an erroneous theory, and have fully explained the law as we understand it in the article on railroad grants."

As a matter of present classification, Secretary Smith concedes that lands of this class are subject to entry under the mining laws.

'Dana's System of Mineralogy, 6th ed., p. 769.

2 Preliminary Sketch of the Phosphates of Florida, by George H. Eldridge. Trans. Am. Inst. Min. Eng., vol. xxi., p. 196.

3 Gary v. Todd, 18 L. D. 58.

* Id. (on review), 19 L. D. 475.

5 See, ante, 208.

Tucker v. Florida Ry. & Nav. Co., 19 L. D. 414.

7 See, ante, 158, 159.

2426. Tailings.-To suffer tailings to flow where they list, without obstructions to confine them, is equivalent to their abandonment.' If they lodge on the lands of another, they are considered as an accretion, and belong to him. If they accumulate on vacant and unappropriated public land, it has been the custom in the mining regions of the west to recognize the right of the first comer to appropriate them by proceedings analagous to the location of placer claims. As was said by the supreme court of Nevada: "Although not a mining claim within the strict meaning of the expression as generally used in this coun"try, a 'tailings claim' is so closely analagous to it, that "the propriety of subjecting the acquisition and maintenance of the possession of it to the rules governing the acquisition of the right to a strictly mining claim, at once "suggests itself."4

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แ

The land department has recognized this possessory right, and permitted entries to be made of lands containing beds of tailings, under the laws applicable to placers. There are no adjudicated cases in the reports of department decisions which have come under our observation, but we have knowledge of several instances where patents for this class of claims have been issued under the mining laws.

2427. Subterranean gravel deposits in ancient river beds. Subterranean channels of ancient streams into which beds of auriferous gravels have been deposited are sometimes called deep, or ancient, placers. The most noted of these are found in California.5

1 Jones v. Jackson, 9 Cal. 238, 245.

2 Id.

3 Dougherty v. Creary, 30 Cal. 291. Rogers v. Cooney, 7 Nev. 213.

5 For interesting and valuable discussion on the subject of these deep gravels, see, Monographs of Mr. Ross E. Browne, The Ancient River Beds of The Forest Hill Divide, Cal. State Mineralogist's Report, 1890, p. 435, and of Mr. John Hays Hammond, The Auriferous Gravels of California, in the report of 1889, p. 105.

These gravel beds lie upon a "bed-rock" which, at some period of geological history, formed the bed of an ancient river. They are usually immediately overlain by a formation of clay gouge, and on this clay covering is a capping of lava, sometimes hundreds of feet in thickness. These subterranean deposits are reached by means of tunnels to the bed-rock, and thence following the meanderings of channel. These deposits certainly occupy a fixed position in the mass of the mountain, although they do not within the popular definition of lodes, or veins. The I and department, at an early period, classified them as " place rs," and patents have uniformly been issued upon locations made under the placer laws.'

the

fall

The supreme court of California has upheld this classification.2

we

The inconvenience of this rule will be shown when come to consider the requirements of the department as to discovery within the limits of each twenty-acre tract. But this is an argument which should address itself to congress, in order that this class of deposits may receive separate consideration, and be relieved from conditions which not unreasonable when applied to superficial placers, but become exceedingly onerous and burdensome when applied to these subterranean deposits.

are

un

? 428. Beds of streams. As to whether gravel deposits lying on the beds of watercourses may be appropriated der the placer laws, will depend on circumstances. If the stream is navigable, certainly no right to appropriate its bed for mining purposes can be sanctioned, for

two

(1) The shores and beds of such rivers belong to the state, and not to the federal government. They were not granted by the constitution to the United States, but were reserved to the states respectively, and the new states have

1 Com'rs' Letter, Copp's Min. Dec. 78.

2 Gregory v. Pershbaker, 73 Cal. 109, 115.