land be rightfully his, until he can obtain possession of this evidence of his title.

On the other hand, when he obtains this possession, if there be any equitable reason why, as against the government, he should not have it; if it has been issued without authority of law, or by mistake of facts, or by fraud of the grantee; the United States can, by a bill in chancery, have a decree annulling the patent, or possibly a writ of scire facias. If another party (as the city of Grantville) is, for any of the reasons cognizable in a court of equity, entitled, as against the relator, to have the title which the patent conveys to him, a court of chancery can give similar relief to the city as soon as the patent comes into his possession, or perhaps before. So that it is plain that by non-action of the land department the legal rights of the parties may remain indefinitely undecided, and the rights of the relator seriously embarrassed or totally defeated, while the delivery of the patent, under the writ of mandamus, opens to all the parties the portals of the courts, where their rights can be judicially determined.

We are of opinion that the relator in the case, as presented to us, is entitled to the possession of the patent which he demanded; that the writ of mandamus by the Supreme Court of the District of Columbia is the appropriate remedy to enforce that right, and the judgment of that court is reversed, and the case remanded, with instructions to issue the writ.

40

Limestone deposits do not, as minerals, except land from railroad grants in terms similar to the one to the Southern Pacific Railroad prior to 1872. Lands in California containing limestone, and useless for agriculture,can be purchased only under the timber and stone act of June 3, 1878.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., August 5, 1880.

Register and Receiver, Visalia, California.

GENTLEMEN: I have examined the papers in the matter of the application of Elias Jacob to enter, under the laws providing for the sale of mineral lands, lot 37 being partly within the N. E. section 35, township 17 south, of range 27 east, M. D. M., in Tulare county, California. The claim is known as the "Kaweah Limestone Ledge Mine."

The report of P. Y. Baker, U. S. Deputy Mineral Surveyor, dated March 12, 1879, is to the effect that the limestone is of good quality, and the land more valuable for its limestone than for agricultural purposes.

The improvements: One excavation from which stone has been removed; about one hundred cubic feet of stone on the dump; open cuts, running to the lode; roadway to the dump; three lime-kilns in good order; one dwellinghouse, and shed for horses. The value of said improvements he estimates to exceed $1000. The claim was located 1500 by 600 feet, February 18, 1879, by Elias Jacob, and recorded February 24, 1879, in Recorder's office of Tulare county.

Application for patent was filed April 18, 1879. Publication of notice in the Tulare Weekly Times from April 19 to the twenty-first of June, 1879, the legal period; posting on the claim and in the Register's office continued for the same time.

July 28, 1879, the Clerk of the Tulare County and District Courts certified that no suits or action involving said claim was pending or had been theretofore brought; and

July 30, 1879, Mr. Jacob applied to make entry, and tendered the purchase money.

On the eighteenth of June, 1879, James Newton filed adverse claim against Jacob's application, basing his allegation of ownership on his pre-emption claim involved in the case of said Newton v. The Southern Pacific Railroad Company, and pending decision in this department. Newton, in said adverse claim, concedes the value of the land to be its limestone, which he says is inexhaustible. He failed to bring suit within the statutory period, and was entitled to no stay of proceedings upon his claim as filed: 1. Because a homestead is not the subject of an adverse claim; and, 2. If it had been, his allegations of right were wholly imperfect.

July 31, 1879, supplemental objections were filed by Newton's attorney. In some points they are in direct contradiction to Newton's former affidavit, and in others unimportant, requiring no specific attention. The Honorable Secretary of the Interior finally rejected the settlement claim of Newton, February 5, 1880, and his right need be no further discussed.

A protest, dated August 1, 1879, was filed by D. K. Zumwalt, attorney for the Southern Pacific Railroad Company, setting forth that limestone is not usually classed as mineral, and that at the time of the grant to said railroad company only the precious metals were dealt with by the government as minerals in its disposition of lands, and was not intended to be excepted from the grant to said company, and that no notice had been served on said company or its said attorney.

The company was only entitled to the notice given by publication as aforesaid.

August 1, 1879, you transmitted the papers to this office, with the statement that in your opinion the entry of Jacob must be allowed, but in view of said protest you deemed it proper to refer the matter to this office. The land in question is within the limits of the grant to the Southern Pacific Railroad Company, whose right, in the absence of any objection, would attach thereto October 3, 1872.

The grant was made to said company, section 18, act July 27, 1866 (14 Stats. 292), subject to the same conditions as

the grant to the Atlantic and Pacific Railroad Company. The grant to the last named company (section 3 of said act) was of "every alternate section of public land, not mineral, designated by odd numbers," etc.

Was land of this character mineral, within the meaning of the law?

**

The act of Congress of July 26, 1866 (14 Stats. 251), provided that "the mineral lands of the public domain * are hereby declared to be free and open to exploration and occupation." What lands were designated by the act as mineral, appears in sections 2 and 10, as "a vein or lode of quartz, or other rock in place, bearing, gold, silver, cinnabar or copper. Section 12 of the act of July 9, 1870, providing for the entry and patenting of placer claims, included “all forms of deposit, excepting veins of quartz or other rock in place." The act of May 10, 1872, provided for the survey, entry, and patenting of "mining claims upon veins or lodes of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits." By circular issued to Surveyors-general and Local Land Officers, July 15, 1873, it was held, in effect, that all valuable mineral deposits were subject to entry under the act of May 10, 1872.

I am not aware, however, that application has ever been made under the act of 1866, for a patent on a limestone ledge; but, on the contrary, where the land was agricultural, and not used for manufacturing purposes, existence of limestone constituted no objection to its entry as agricultural land.

The act making the grant to the railroad company authorized "said corporation to take from the public lands adjacent to the line of said road, material of earth, stone, timber, and so forth;" and only reserved from the otherwise unappropriated land granted such as was mineral in char

acter.

I am clearly of the opinion that the act did not except from the grant as mineral such lands as were simply valuable for its deposit of limestone, for such lands under the laws then in force were not subject to disposal as mineral; but, as before stated, were disposed of as agricultural when used for agricultural purposes.

Aside from these considerations, I find upon the statute

books an act of Congress providing a specific mode for the acquisition of title to lands valuable chiefly for stone. This act, which was approved June 3, 1878, provides that lands of such character in the State of California shall be sold to qualified applicants at the rate of $2.50 per acre.

I entertain grave doubts that limestone should be classed as a mineral, or disposed of as mineral land under any of the laws of the United States. If such lands are to be classed as mineral, they must necessarily be reserved from disposal under the laws providing for settlement rights, and in that manner parties who are now occupying lands for agricultural purposes, and who have, perhaps, made extensive improvements, would be prevented from acquiring title under the pre-emption, homestead, or other agricultural land laws.

The act of June, 1878, may be considered a congressional interpretation of the mining laws then in force, to the extent of holding that they did not provide a mode for the disposal of land valuable chiefly for stone.

This office has decided but one regularly presented case involving the question as to whether land valuable for limestone was subject to entry under the mining laws. Such decision was undoubtedly based upon the opinion of Attorney-general Williams, stated in his communication of August 31, 1872, to the Honorable Secretary of the Interior.

In said opinion it is held that diamonds are "valuable mineral deposits," and the land having such a deposit is subject to entry under sections 1 and 6 of the act of May 10, 1872 (sections 2319 and 2325, Revised Statutes).

The Honorable Attorney-general states: "Public lands, for the purpose of sale, are divided into agricultural and mineral lands. The minimum price of the former is $1.25, and of the latter $5 per acre; mineral lands, exclusive of their mineral deposits, are generally worth little or nothing. Prior to the act of July 26, 1866 (14 Statutes, 257), it was customary for persons to take those deposits without respect to the right of the United States. Congress then provided a way in which persons locating lands for mining purposes might acquire title, and other acts have since been passed promotive of the same end. I think these acts ought to be most liberally construed, so as to facilitate the