§ 39. Appeal. An appeal lies from the ruling of the surveyor-general in relation to a survey or its amendment, in like manner as in other land office matters.1

1. Emma Lode, 7 L. D. 169.

§ 40. Surveys under State Law-Surface Survey. The establishment or identification by survey of the exterior limits of a location prior to an official survey of the claim is usually provided for by local statute.1

2. RECORD. The field notes of such a survey accompanied by the certificate of the surveyor making the same should be incorporated into the recorded or the amended notice of location.2

3. EVIDENCE. Such survey and certificate become a part of the record of the claim. Such record is prima facie evidence of the facts therein contained.3 4. UNDERGROUND SURVEY. The court in which an action is pending and in which say the extra-lateral right is involved, may, upon the application of either party to the controversy, good cause being shown therefor, order a survey of the underground workings of the mining property of the other party.4

5. SERVICE OF ORDER. Upon due service of the order the survey may be made.5

1. The Californian Mining Act provides that "Where a locator, or his assigns, has the boundaries and corners of his claims established by a United States deputy mineral survey (or), or a licensed surveyor of this state, and his claim connected with the corner of the public or minor surveys of an established initial point, and incorporates into the record of the claim the field notes of such survey, and attaches to and files with such location notice, a certificate of the surveyor, setting forth: first, that said survey was actually made by him, giving the date thereof; second, the name of the claim surveyed and the location thereof; third, that the description incorporated in the declaratory statement is sufficient to identify; such survey and certificate becomes a part of the record, and such record is prima facie evidence of the facts therein contained." C. C. § 14261; see Cal. Stats. 1907, p. 310.

2. C. C., § 14261. 3. Id.

4. See § 85 post.

The provisions of the law of California upon this subject are as follows: "The court in which an action is pending for the recovery of real property, or for damages for an injury thereto, or a judge thereof may, on motion, upon notice by either party for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, and of any tunnels, shafts, or drifts therein, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action." C. C. P. § 742.

"The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurement; but if any unnecessary injury be done to the property he is liable therefor." C. C. P. § 743.

5. C. C. P. § 743.

For survey of land divided by a county line see Pol. C. § 4216.

§ 43. Mining district-extent-changing boundaries-persons -corporation-regularity of proceedings-officers

district-duties of recorder.

of

§ 41. Land District. A land district is a division of a state or territory, as the case may be, created by law, in which is located such a district for the disposition of the public lands therein.1

2. ADDITIONAL LAND DISTRICTS AND CHANGES THEREIN. The President is authorized to establish additional land districts,2 change or re-establish the boundaries thereof, and discontinue 4 or consolidate districts.5

1. U. S. v. Smith, 11 Fed. 487. As to Alaska see Columbia Co. v. Hampton, 161 Fed. 60.

2. Rev. Stats. § 2343.

3. Rev. Stats. § 2253.

4. Rev. Stats. § 2252; see Rev. Stats. § 2240.

5. 27 Stats. 368.

The term "mineral dis

§ 42. Mineral District. trict" as used in acts of Congress is said to be neither known in the law or fact as the designation of any well-defined or exact locality, and there being no method of proceeding known to the law by which a district can be prospected, surveyed and established or declared to be a "mineral district," the term is void and incapable of definite signification or local application and is without effect.1

1. U. S. v. Smith, 11 Fed. 487; see Rev. Stats. § 2334; see U. S. v. Copper Queen Co., 7 Ariz. 80; U. S. v. Edgar, 140 Fed. 655; U. S. v. Benjamin, 21 Fed. 285.

§ 43. Mining District. A mining district is a section of country designated by name, having described, or understood, boundaries and subject to the customs, rules and regulations adopted and prescribed by the miners therein.1

2. EXTENT. There is no limit to its territorial extent.2

3. CHANGING BOUNDARIES. The boundaries of a district may be changed if vested rights are not thereby interfered with.3

4. PERSONS. NO certain number of persons are necessary to effect its organization.4

5. CORPORATION. A corporation may take part in the formation of a mining district.5

6.

REGULARITY OF PROCEEDINGS. The regularity of the mode in which the district was organized will not be inquired into by the courts unless some fraud be shown."

7. OFFICERS OF DISTRICT. The officers of a district are usually limited to a "Mining Recorder," who is elected by the miners thereof and therein, for a specified term.

8. DUTIES OF RECORDER. He should keep proper books for recording instruments therein. Errors of recordation are not necessarily fatal.8

1. U. S. v. Smith, 11 Fed. 487; see Campbell v. Rankin, 99

U. S. 261.

2. King v. Edwards, 1 Mont. 235.

3. Id.

4. But see Fuller v. Harris, 29 Fed. 814.

5. McKinley v. Wheeler, 130 U. S. 630.

6. Gore v. McBrayer, 18 Cal. 583.

7. Fuller v. Harris, ante; see McCann v. McMillan, 129 Cal. 350.

8. Myers v. Spooner, 55 Cal. 257; Weese v. Barker, 7 Colo. 178.

CHAPTER VII.

MINERAL LANDS.

§ 45. Land subject to location-land valuable for its mineral deposits classification of land-who may question character of land.

§ 46. Land not subject to location-Indian lands-allotments -patents.

§ 47. Mineral deposits.

3

§ 45. Land Subject to Location. All valuable mineral deposits in land belonging to the United States, both surveyed or unsurveyed, and the lands in which they are found, are free and open to exploration, occupation and purchase.1 This includes mineral land within a forest reservation,2 the unpatented parts of a Congressional grant to a railroad company: ór to a state, or of an unconfirmed Mexican grant,5 or land within the limits of an unpatented town-site, or when known to be mineral at the date of the application for patent therefor,7 or an unlocated or unpatented "known vein" within the exterior limits of a patented or unpatented placer mining claim.8

2. LAND VALUABLE FOR ITS MINERAL DEPOSITS. Land valuable for its mineral deposits is land which contains minerals in sufficient quantities to justify exploitation and development; that is, land which is "chiefly valuable" for other than agricultural purposes, whether the deposit is metallic or non-metallic, and all such lands as are chiefly valuable for their deposits of a mineral character which are useful in the arts or valuable for purposes of manufacture.9

3.

CLASSIFICATION OF LAND. There is no certain, well-defined, obvious line of demarcation between mineral and non-mineral land. 10 No land can be valuable mineral land unless it contains a deposit of mineral in some form, metalliferous or non-metalliferous in quantity sufficient to justify expenditures in the effort to extract it.11

4. WHO MAY QUESTION CHARACTER OF LAND. The question of the character of land can be raised only by the United States or those claiming under them 12 and is conclusively determined in and by the land. department.13 The question usually arises at the instance of some party connected with the paramount title, who claims the land to be non-mineral.14

1. Rev. Stats. § 2319. Only mineral lands are subject to disposition under the mining laws. American Co., 39 L. D. 299. 2. 29 Stats. 11; 30 Stats. 36; see H. H. Yard, 38 L. D. 59. The land department has full authority, of its own motion or at the instance of others, to inquire into and determine whether mining locations within National Forest Reserves were preceded by the requisite discovery of mineral; whether the lands are of the character subject to occupation and purchase under the mining laws notwithstanding the locator has not applied for patent; and if the location be found to be invalid the lands covered thereby will be administered as part of the public domain, subject to the reservation for forest purposes, without regard to the location. H. H. Yard, ante; see, generally, U. S. v. Rizzinelli, 182 Fed. 675.

For Rules and Regulations governing Forest Reserve see 24 L. D. 589; see, also, Roughton v. Knight, 219 U. S. 537.

3. 13 Stats. 567; N. P. R. Co. v. Soderberg, 188 U. S. 526. 4. Ivanhoe Co. v. Keystone Co., 102 U. S. 167; Utah, 32 L. D. 117; see McQuiddy v. California, 29 L. D. 181; Heydenfeldt v. Daney Co., 93 U. S. 634; Garrard v. S. P. Mines, 94 Fed. 983; Keystone Co. v. Nevada, 15 L. D. 259; Stanley v. Mineral Union, 26 Nev. 55; Wheeler v. Smith, 5 Wash. 704.

5. Lockhart v. Wills, 9 N. M. 344; see s. c. 181 U. S. 516; Lockhart v. Leeds, 10 N. M. 568.

6. Steel v. St. Louis Co., 106 U. S. 447; see Davis v. Weibbold, 139 U. S. 507.

7. Lalande v. Saltese, 32 L. D. 211.

8. Reynolds v. Iron Co., 116 U. S. 687; Clary v. Hazlitt, 67 Cal. 286; Mt. Rosa Co. v. Palmer, 26 Colo. 56.

9. N. P. R. Co. v. Soderberg, ante; Steele v. Tanana Co., 148 Fed. 678; see Pacific Coast Co. v. N. P. R. Co., 25 L. D. 233; Alford v. Barnum, 45 Cal. 482; Merrill v. Dixon, 15 Nev. 401; see § 99, post.