under an agreement by which the land is to be conveyed to the corporation on issuance of patent, is not illegal, as such a contract to convey is not prohibited by the statutes relative to the sale of coal lands. United States v. Trinidad Coal & Coking Co., 37 Fed. Rep. 180. (Reversed, S. C., 137 U. S. 160.)

14. If a patent is issued to the wrong party he may be declared trustee for the rightful owner; but if the patent is issued without authority of law it is void, and neither party can claim anything under it. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7. See S. C., 114 U. S. 576.

15. One suing a patentee to have him de

9. A co-owner need not protect his rights by adverse if application for patent is made in their own names by the other co-owners; but if patent issues to them, they will be de

clared constructive trustees for the owner

whose name is omitted from the application. Turner v. Sawyer, 150 U. S. 578; Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067. Contra, Grampian Lode, 1 L. D. 544; Monitor Lode, 18 L. D. 358.

10. The patentee of a mining claim may be declared trustee for one who failed to adverse, if such failure was caused by fraud on the part of the patentee. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

show that he is entitled to the patent, not merely that patent erroneously issued, for that could be material only in a direct proceeding to vacate the patent. Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559.

16. "To charge the holder of the legal title to land under a patent of the United States, as trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was

entitled to the patent from the government, and that in consequence of erroneous rulings of the officers of the Land Department upon the law applicable to the facts found, it was refused him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law properly administered the title should have been awarded to the claimant." Bohall v. Dilla, 114 U. S. 47.

12. Where one party wrongfully obtains legal title to land which in equity and good conscience belongs to another, whether he acts in good faith or otherwise, he will be charged in equity as a constructive trustee of the equitable owner. Silver v. Ladd, 7 Wall. 219; Johnson v. Towsley, 13 Wall. 72; Rector v. Gibbon, 111 U. S. 276; Sanford v. Sanford, 139 U. S. 642. (See 13 Pac. Rep. 602.) Hardy v. Harbin, 4 Sawy. 549; Lakin v. Sierra Buttes G. M. Co., 11 Sawy. 231; 25 Fed. Rep. 337; Salmon v. Symonds, 30 Cal. 301; Wilson v. Castro, 31 Cal. 420; Bludworth v. Lake, 33

Cal. 256.

13. Decisions of the Land Department may be inquired into to see if a patentee should be declared trustee for another. Johnson v. Towsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 646.

18. When the legal title to land has passed from the United States to one party, when under the law and in equity it ought to have gone to another, a court of equity will convert the holder into a trustee for the true owner and compel him to convey the legal title. Rector v. Gibbon, 111 U. S. 276.

19. Where a claim has been abandoned after publication of notice of application therefor, and then relocated by a stranger, and subsequently entered by and patented to the applicant, the patentee will be declared trustee for the relocator. (Strong dissenting opinion.) South End M. Co. v. Tinney, 35 Pac. Rep. 89.

20. Where, prior to application for patent, the owner of a mining claim conveys a part thereof as a town lot, the grantee is not bound to adverse the application, but the patentee takes title subject to a trust in favor of his

21. One tenant in common of a mining claim promised his co-tenant that he would perform the required annual labor to hold the claim, but fraudulently failed so to do, and relocated the claim for himself. Held, that the claim had been legally abandoned, and was therefore subject to the relocation; but that the relocator, by reason of the fraud, might be declared a constructive trustee under the relocation for his co-tenant as to the co-tenant's interest in the original location. Saunders v. Mackey, 5 Mont. 523; 6 Pac. Rep. 361.

22. Where an applicant bases his right to a patent on a relocation, in the making of which he acted as a constructive trustee for the benefit of co-owners according to their respective interests in the original location, such co-owners are not obliged to adverse the application, but may have the applicant declared trustee. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

23. Where a relocation of a forfeited claim is made by one of the owners with the understanding that it is made for the benefit of all, he will be declared trustee for his coowners. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

24. A co-owner who makes a relocation in his own name to the injury of the rights of his co-owners holds such relocation in trust for his co-owners to the extent of their respective interests. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

25. A location made by A. in the name of B. constitutes B. the legal owner, and A. cannot compel B. as trustee to convey to him. Moore v. Hammerstag, 109 Cal. 122; 41 Pac. Rep. 805.

26. Assessment work was not done on a claim, though one owner promised to see that it was done. A third person, in collusion with the owner by whose fault abandonment occurred, relocated and applied for patent. The other owner in the original location adversed. Held, that he had no grounds for adversing, but should file a bill in equity against the applicant to have him declared trustee. Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

original location are lost. Injured owners must proceed in equity to have the relocator declared trustee for their use. Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

28. An agent may not defeat the rights of his principal by relocation, and if he does so will be declared trustee under the relocation for his principal. Lockhart v. Rollins, 2 Idaho, 503; 21 Pac. Rep. 413.

STATES.

Alabama.

AN ACT to exclude the public lands in Alabama from the operation of the laws relating to mineral lands.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That within the mineral or otherwise, shall be subject to disState of Alabama all public lands, whether posal only as agricultural lands: Provided, however, That all lands which have heretofore containing coal and iron shall first be offered been reported to the General Land Office as at public sale: And provided further, That any bona fide entry under the provisions of the homestead law of lands within said State heretofore made may be patented without reference to an act approved May tenth, eighteen hundred and seventy-two, entitled, mining resources of the United States," in "An act to promote the development of the cases where the persons making application for such patents have in all other respects complied with the homestead law relating

thereto.

Approved March 3, 1883. (22 Stat. 487.)
Circular of April 9, 1883, 1 L. D. 655.

1. The act of March 3, 1883, could not deprive a miner who had made a legal location of a mining claim in Alabama, previous to that date, of any right, and he must be permitted to make entry of his claim and procure patent therefor. Cordell Placer, 4 L. D. 476.

2. Alabama land returned as valuable for coal prior to the act of March 3, 1883 (22 Stat. 487), is not subject to homestead entry until offered at public sale. Alice Jordan, 7 L. D. 461; Nathaniel Banks, 7 L. D. 512; 8 L. D. 532 (on review); J. C. Henley, 9 L D. 178. But see act of March 2, 1889 (25 Stat. 854).

SEC. 8. That the said district of Alaska is hereby created a land district, and a United States land office for said district is hereby located at Sitka. The commissioner provided for by this act to reside at Sitka shall be ex officio register of said land office, and the clerk provided for by this act shall be ex officio receiver of public moneys and the marshal provided for by this act shall be ex officio surveyor-general of said district and the laws of the United States relating to mining claims, and the rights incident thereto, shall, from and after the passage of this act, be in full force and effect in said district, under the administration thereof herein provided for, subject to such regulations as may be made by the Secretary of the Interior, approved by the President: Provided, That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress: And provided further, That parties who have located mines or mineral privileges therein under the laws of the United States applicable to the public domain, or who have occupied and improved or exercised acts of ownership over such claims, shall not be disturbed therein, but shall be allowed to perfect their title to such claims by payment as aforesaid: And provided also, That the land not exceeding six hundred and forty acres at any station now occupied as missionary stations among the Indian tribes in said section, with the improvements thereon erected by or for such societies, shall be continued in the occupancy of the several religious societies to which said missionary stations respectively belong until action by Congress. But nothing contained in this act shall be construed to put in force in said district the general land laws of the United States.

States mineral land laws." Com'r to S. T. Smith, Aug. 19, 1891. (See, also, mineral entries in Gainesville, Florida, Land District.) Indian Territory.

6. The mineral land laws do not apply to the Indian Territory. Com'r to J. T. Shipman, Sept. 8, 1891; Com'r to James G. Miller, Feb. 11, 1893.

Kansas.

AN ACT to exclude the States of Missouri and Kansas from the provisions of the act of Congress entitled "An act to promote the development of the mining resources of the United States," approved May tenth, eighteen hundred and seventy-two.

Be it enacted by the Senate and House of Representatives of the United States of Amer ica in Congress assembled, That within the States of Missouri and Kansas deposits of coal, iron, lead, or other mineral be, and they are hereby, excluded from the operation of the act entitled "An act to promote the development of the mining resources of the United States," approved May tenth, eighteen hundred and seventy-two, and all lands in said States shall be subject to disposal as agri

cultural lands.

The provisions of the preceding sections of this chapter shall not apply to the mineral lands situated in the States of Michigan, Wisconsin, and Minnesota, which are declared free and open to exploration and purchase, according to legal subdivisions, in like manner as before the tenth day of May, eighteen hundred and seventy-two. And any bona fide entries of such lands within the States named since the tenth of May, eighteen hundred and seventy-two, may be patented without reference to any of the foregoing provisions of this chapter. Such lands shall be offered for public sale in the same manner, at the same minimum price, and under the same rights of pre-emption as other public lands.

Act of Feb. 18, 1873 (17 Stat. 465); sec. 2345, U.S. Rev. Stat.

Missouri.

8. The State of Missouri was excepted from the operation of the mineral land laws by the same act as Kansas. (See Kansas.) Act of May 5, 1876 (19 Stat. 52). See Com'r to E. H. Benham, 1 L. D. 599

Oklahoma.

9. Lands in Oklahoma can be acquired only under the agricultural land laws applicable to the Territory regardless of their mineral or non-mineral character. Sec. 16, Act of March 3, 1891 (26 Stat. 1026).

Texas.

10. The State of Texas is not subject to the public land laws. Com'r to Abner Doubleday, Dec. 17, 1892.

Wisconsin.

11. The mineral land laws are not applicable in the State of Wisconsin. (See Michigan.) Act of Feb. 8, 1873 (17 Stat. 465); sec. 2345, U. S. Rev. Stat.

General.

12. A State has the right to authorize the working of mines and to regulate the same. Stokes v. Barrett, 5 Cal. 36 (1855).

13. Tide lands belong to the State, but if they are not disposed of the littoral proprietor may erect wharves which do not interfere with the rights of the public. Case v. Toftus, 39 Fed. Rep. 730.

14. The mines of gold and silver in the public lands are as much the property of the State by virtue of her sovereignty as are similar mines in the hands of private proprietors. Stokes v. Barrett, 5 Cal. 36 (1855).

15. As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage and other necessary means to their complete development, and those conditions shall be fully expressed in the patent. Act of July 26, 1866 (14 Stat. 252); sec. 2338, U. S. Rev. Stat.

16. Section 2338, United States Revised Statutes, does not operate as a reservation by the United States of a right of way through a patented mining claim, which may be taken and used by any other miner, whenever it becomes necessary to take and use it in working his mine, upon such terms and conditions as the State legislature may have prescribed. Amador-Queen M. Co. v. Dewitt, 73 Cal.

482.

MISCELLANEOUS.

1. "The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights.” Ex parte Robinson, 19 Wall. 505.

2. Ore taken from public lands subject to disposal under the mineral land laws is personalty and belongs to the one extracting it. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183.

3. "It is not the practice of this office to make cases special unless shown by affidavit duly corroborated, that extreme hardship would result to the parties interested, or that public interest is such as to demand its advancement." Com'r to L. A. Grant, June 3,

1891.

EXEMPLIFICATIONS OF PATENTS, RECORDS, BOOKS, OR PAPERS.

All exemplifications of patents, or papers on file or of record in the General Land Of fice, which may be required by parties interested, shall be furnished by the Commissioner upon the payment by such parties at the rate dollars for copies of township plats or diaof fifteen cents per hundred words, and two grams, with an additional sum of one dollar for the Commissioner's certificate of verifi cation with the General Land Office seal; and one of the employés of the Office shall be designated by the Commissioner as the receiving clerk, and the amounts so received shall, under the direction of the Commissioner, be paid into the Treasury; but fees shall not be demanded for such authenticated copies as may be required by the officers of any branch of the Government, nor for such unverified copies as the Commissioner in his discretion may deem proper to furnish. (See Stat. secs. 891, 2469, and 2470.) Sec. 461, U. S. Rev.

Copies of any records, books, or papers in the General Land Office, authenticated by the seal and certified by the Commissioner thereof, or, when his office is vacant, by the principal clerk, shall be evidence equally with the originals thereof. And literal exemplifications of any such records shall be of the same validity as if the names of the held, when so introduced in evidence, to be officers signing and countersigning the same had been fully inserted in such record. (See secs. 461, 2469, 2470.) Sec. 891, U. S. Rev. Stat.

4. A certified copy of a paper signed by the "Acting Commissioner of the General Land Office" is admissible in evidence under section 891, United States Revised Statutes. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505.

to Thomas Price, July 1, 1891; Com'r to Samuel Cooper, July 17, 1891; Com'r to N. P. Stilson, June 15, 1893; Com'r to Francis Cunningham, 7 C. L. O. 179; Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182.

6. Previous to 1891 (Act of March 3, 1891, 26 Stat. 1095), mineral lands could not be acquired under town site laws. Pierce v. Sparks, 22 N. W. Rep. 491; Hawke v. Deffeback, 22 N. W. Rep. 480.

7. In a controversy to determine the character of the land the government is a party in interest. Caledonia G. M. Co. v. Rowen, 2 L. D. 719; Magalia G. M. Co. v. Ferguson, 3

L. D. 234.

8. The right to mine and to use water for that purpose must be exercised in a reasonable way, so as not to injure the rights of others. Woodruff v. North Bloomfield Gravel M. Co., 18 Fed. Rep. 573.

9. A relinquishment of land by a mineral entryman must be accompanied by an abstract of title showing him to be the owner of the land at date of the execution of the relinquishment. Com'r to Pueblo Office, Sept. 30, 1895, In re Lookout Lode.

10. A local custom of miners allowing a mine owner to tunnel into his claim through a lower claim, recognized. Bliss v. Kingdom,

46 Cal. 651.

11. A right to mine carries with it the incidents to such a right. Tartar v. The Spring Creek Co., 5 Cal. 395 (1855); Clark v. Duval, 15 Cal. 85 (1859-60).

12. The fee demandable by the local land office for filing an application for a mineral patent is $10, whether the application covers one location or more than one. Com'r to Tucson Office, Oct. 4, 1892.

13. The purchase price to be paid for a consolidated claim made of several locations is to be the legal price ($2.50 per acre for placer claims and $5 per acre for lode claims and mill sites) for the total number of acres and any fractional part of an acre. Com'r to Thomas H. White, Jan. 27, 1892.

14. Mineral lands in the restored Uintah Indian reservation are to be sold at $20 per acre. Act of May 24, 1888 (25 Stat. 157).

15. The cession of territory by Mexico to the United States carried with it title to

16. At the time California was acquired by the United States, the discoverer of a mine was rewarded by an investiture, ipso facto, with a perpetual property and ownership of the mine. Castillero v. United States, 2 Black, 1.

17. The power over the public lands is vested in Congress by the Constitution without limitation, and has been considered the foundation upon which the territorial governments rest. United States v. Gratiot, 14 Pet. 526.

18. The location of a mining claim and the maintenance thereof confers a vested right in the nature of a grant from the United States, and the locator may not be divested of such right without it is by the exercise of the right of eminent domain, in which case he must be compensated therefor. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196.

19. The common law relative to riparian rights is the law of the United States in the absence of statutory enactment. Packer v. Bird, 137 U. S. 661.

20. The common law as to riparian rights is not in force in Nevada. Reno Sm. Works v. Stephenson, 20 Nev. 269.

21. A miner must take the land he claims as he finds it, subject to priorities. Irwin v. Phillips, 5 Cal. 140 (1855).

22. Priority of right will govern where coal land is claimed in good faith by two parties. Paire v. Markham, 21 L. D. 197.

23. Mines belong to the owner of the land, whether the government or an individual. Fremont v. United States, 17 How. 542; United States v. Castillero, 2 Black, 1; Merced M. Co. v. Boggs, 3 Wall. 304. (See 14 Cal. 279.) United States v. Parrott, 1 McAll. 271; Ah He v. Crippen, 19 Cal. 491; 10 Mor. Min. Rep. 367; Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635.

24. It is a conceded doctrine that mines of

precious metals "belong to the eminent domain of the political sovereignty." Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635. See, also, 7 Op. Atty. Gen. 636.

25. Under the Spanish and Mexican laws, an ordinary grant of lands by the government conveyed no title to the mine and minerals within the boundaries of the tract granted. These remain a portion of the pub