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are so much greater than the possibilities flowing from surface exploration that they afford sufficient inducement and promise of reward to the tunnel proprietor to proceed with his enterprise; that a location based upon any discovery can only be made upon the top, or apex, and whoever succeeds in making such location peaceably and in good faith before any one else acquires a right by virtue of an antecedent discovery is entitled to all the rights and privileges conferred upon a valid location. Such rights may not be disturbed or invaded by any subsequent discovery of the same vein on its dip.

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II. MANNER OF ACQUIRING TITLE TO COAL LANDS.

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2495. Classification of coal as a mineral-History Legislation-Characteristics of the system. As observed in a previous section,' prior to the passage of the coal land act of July 1, 1864, the land department did not regard coal as a mineral within the meaning of the prior legislation of congress, yet this substance, although essentially of vege table origin, has, generally speaking, been classified mineral, as it came within the etymological signification of the term, being obtained from underground excava tions, or "mines." The act above referred to was the first legislation by congress providing a method for the disposal of coal lands. It was followed in the succeed ing year by a supplemental act, and in 1873 congress passed a law which is the basis of the existing system."

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Whatever may have been the rule as to the classifica tion of coal lands prior to the passage of the act of 1864,

1 See, ante, 140.

See, ante,

88.

313 Stats. at Large, 343.

* March 3, 1865, 13 Stats. at Large, 529.

5 Rev. Stats., ?? 2347, 2352.

since that date they are classified as mineral by legislative construction.1

As heretofore noted, lands containing coal are not, as a rule, excepted from the operation of the railroad grants,3 nor are they considered by the department as mineral lands within the meaning of the act of June 3, 1878,' granting the privilege of cutting timber upon mineral lands of the public domain in certain states.

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It will serve no useful purpose to retrace the history of congressional legislation on this subject. The coal land laws form a system peculiar to themselves, having nothing in common with the general mining laws, and strictly speaking, are not in pari materia. The ownership and possession of this class of public lands were never subject to regulation by local rules and customs, and from the passage of the first act in relation to them to the present time, the method of acquiring title to them has been simple, and unaccompanied by the perplexities that have arisen in the administration of the laws relative to lands containing lodes and placers. Such questions as have arisen in reference to coal have been adjudicated entirely within the land department. No controversies arising out of the proper constructions of these laws are, in the process of obtaining title, relegated to the courts for determination. The coal land system, like that applicable to homestead, pre-emption, and other agricultural entries, is administered by the executive department of the government. For this reason we note the almost total absence of judicial decisions upon the subject, and must look exclusively to the land department for the rules of interpretation.

2496. Rules for determining character of land.While the system prescribing the method for obtaining

1 United States v. Mullan, 7 Saw. 466; S. C. on appeal, 118 U. S. 271. 2See, ante,

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152.

See, Rocky Mountain C. & I. Co., 1 Copp's L. O. 1.

420 Stats. at Large, 88.

5 Instructions to Timber Agents, 2 L. D. 827.

title to lands containing coal is different from that applicable to other mineral lands, the rules for determining whether a given tract is subject to entry under the coal land laws or not are analagous to those applicable to other classes of mineral deposits.'

They may be thus formulated with special reference to coal:

(1) All classes of coal deposits, whether anthracite, bituminous, lignite, or cannel, are embraced within the coal land laws;2

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(2) It must be shown, that as a present fact the land is more valuable for the purpose of its coal product than for any other purpose; that the substance exists therein in paying quantities, or that it is sufficiently valuable to be worked as a mine."

These facts must be shown by the actual production of coal, or by satisfactory evidence that, taking the tract as a whole, coal exists therein in sufficient quantities to make the same more valuable for mining than for agricultural purposes.

The extent of the deposit may be shown by the testimony of geological experts and practical miners, taken in connection with the actual production of coal from some portion of the tract.

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In determining these facts, means of transportation cannot be taken into consideration as affecting the value of

the coal shown to exist."

That lands in the near vicinity," or even those directly

'See, ante, 2 98.

2 Sickles Min. Dec., 397.

3 Hamilton . Anderson, 19 L. D. 168; Com'rs of Kings County ". Alexander, 5 L. D. 126.

Smith v. Buckley, 15 L. D. 321.

5 Jones v. Driver, 15 L. D. 514.

6 Hamilton v. Anderson, 19 L. D. 168; Com'rs of Kings County ". Alexander, 5 L. D. 126.

7 Mitchell v. Brown, 3 L. D. 65; Savage v. Boynton, 12 L. D. 612.

8 Rucker v. Knisley, 14 L. D. 113.

9 Smith v. Buckley, 15 L. D. 321.

10 In re Williams, 11 L. D. 462; Scott v. Sheldon, 15 L. D. 361.

adjoining, are shown to contain coal,' is insufficient to establish the character of a tract upon which no coal has been developed."

Mere outcroppings or other surface indications will not, in the absence of proof of commercial value of the deposit, prevent the entry of such lands under the pre-emption or homestead laws.1

But it is not necessary to show actual development on each forty-acre subdivision, nor upon all parts of a fortyacre tract."

When, however, a conflict arises between an agricultural and coal claimant, the character of the land to the extent of the entire conflict area is involved, and, necessarily, proofs of a more specific character would be required than in the case of an ex parte application to enter under the coal laws.

The rules governing hearings to establish the character of lands are found in "General Land Office Regulations," issued October 31, 1881.7

The discovery of coal in paying quantities on land embraced within a homestead claim, precludes the completion of the entry; but discovery after purchase, under commuted homestead entry, will not defeat the issuance of the patent.9

2497. Geographical scope of the coal land laws.-The system regulating the pre-emption and sale of coal lands. has substantially the same geographical scope as the general mining laws. It is in practical operation wherever

1Com'rs of Kings County v. Alexander, 5 L. D. 126; In re Archuleta, 15 Copp's L. O. 256.

2 See, also, Dughi v. Harkins, 2 L. D. 721.

3 Frees v. State of Colorado, 22 L. D. 510.

Colorado Coal & Iron Co. v. United States, 123 U. S. 307.

5 Hamilton v. Anderson, 19 L. D. 168; McWilliams v. Green River Coal Assn., 23 L. D. 127.

State of Montana v. Buley, 23 L. D. 116.

71 L. D. 688. See appendix.

Harnish v. Wallace, 13 L. D. 427; Dickinson v. Capen, 14 L. D. 426. 9 Arthur v. Earle, 21 L. D. 92.

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