emption claimant, after the testimony as to the character of the land had been transmitted to this office, but before a decision thereon had been made.

In cases where there is no contest, and the evidence taken after due notice, either before you or the county clerk, clearly and conclusively establishes in your minds that the land is agricultural and not mineral, and that the claimant seeks title therefor in good faith for agricultural purposes, such claimant, if in other respects properly qualified and entitled, will have the option of entering the land at the time of making or filing this proof, or of waiting until this office shall have rendered its decision as to the character of the land.

You will be particular to have it understood that the power of this office to review, revise, or reverse your action in such cases is not taken away or impaired by this act of paying for the land, but that the claimant under such purchase only acquires a vested right on condition that this office or the department proper shall concur with the local officers in the premises, and affirm the claimant's right to the land.*

In any case where there is a contest, or where the nonmineral character of the land and the bona fides of the claimant are not entirely clear and satisfactory, you will not permit the entry until the testimony has been reviewed at this office, and instructions given to permit the entry.

Very respectfully, etc.,

WILLIS DRUMMOND, Commissioner.

No. 9. 1. Under section 2318 of the Revised Statutes, "all lands valuable for mineral" are reserved from sale, except as otherwise expressly directed by law; and whether any certain lands are mineral or agricultural in character is a question of fact to be determined by proofs, it being immaterial that the lands had been borne on the official records, and sold by the district officers, as agricultural.

2. While the right to a patent is equivalent to a patent issued, yet the purchase of lands containing minerals under laws governing the sale of agricultural lands does not vest any rights whatever in the purchaser, for mineral lands are reserved from sale; and if no right to a patent exist, none can legally issue.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, December 22, 1879. SIR: I have considered the case of Smith Scogin v. *Modified by circular of April 27, 1880. See No. 3, Circular Instructions.

Charles E. Culver and Lucinda Coffman, involving the mineral or non-mineral character of the W. half section 29, and all of section 30, township 2 S., range 33 W., Camden, Arkansas, on appeal from your decision of June 23, 1879, holding said tracts to be mineral, except as to the tracts covered by the homestead entry of Mrs. Coffman, and as to these, requiring her, when she makes final proof, to notify all persons alleging such tracts to be mineral, that they may appear and establish the facts.

It appears that the tracts named are embraced in the private entry of said Culver, made April 19, 1878, and that the N. E. quarter of section 29 is covered by the homestead entry of Mrs. Coffman, made December 11, 1872.

The plats of survey of this township, showing it to be agricultural land, were approved in January, 1845, and the land therein was offered at public sale in August of the same year. That not sold continued for sale at private entry, until the act of Congress of June 21, 1866, which required the public lands in the State of Arkansas to be sold under the homestead law only.

This act was repealed by that of June 22, 1876, and the lands in question were again offered at public sale (Proclamation No. 828) on February 4, 1878, and those remaining unsold were again offered for sale at private entry. On April 19, 1878, Culver made such entry of the lands in question (with others) by payment of cash, and received the usual receipt and certificate of purchase from the local officers. On June 12, 1878, these officers forwarded to you the sworn statement of Smith Scogin, deputy United States mineral surveyor, under date of May fifteenth preceding, to the effect that, in the latter part of April preceding, he was called upon to survey one or more mineral claims in said sections, which he did, and that said sections were mineral in character, and that miners had been prospecting and working the same for several months.

You thereupon ordered an investigation touching the character of said sections, and the hearing was held in the following months of July and August. The testimony shows that these sections are situate in a broken and hilly country; that they are of little or no value for agricultural purposes; and that there never have been but two agricultural settle

ments on them, one of which has "gone to waste," and the other, that of Mrs. Coffman, has a cultivation of eight or more acres, confined to a branch bottom.

Section 2318 Revised Statutes provides that "in all cases lands valuable for mineral shall be reserved from sale, except as otherwise expressly directed by law."

Whether or not the lands entered by Culver were such lands, is a question of fact to be determined by proofs, and it is immaterial that they had been previously borne on the official records as agricultural land.

Entry in violation of law of no effect.

If, at the date of his entry, they were "valuable for minerals," they were "reserved from sale," and the action of the local officers in allowing the entry was of no effect, because in violation of law.

The claim of the appellant, that the title to these lands vested in Culver, eo instanti upon his purchase at "private entry," and payment of the purchase money, and that the same can not be disturbed or divested by the existence of mineral in the land, subsequently brought to the knowledge of the Government, can not, I think, be maintained, under the decisions of the courts and of this department. If "reserved from sale," these lands could neither be legally entered nor patented.

Citation of authorities.

In Stoddard et al. v. Chambers (2 Howard, 284), the court, ruling that the holder of a New Madrid certificate had a right to locate it only on public land which had been authorized to be sold, say: "The inquiry here is whether the defendant has any title as against the plaintiff, and there seems to be no difficulty in answering the question-that he has not. His location was made on lands not liable to be thus appropriated, but expressly reserved; and this was the case when the patent issued. *.* No title can be held valid which has been acquired against law. It would be a most dangerous principle to hold that a patent should carry the legal title though obtained fraudulently, or against law."

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In United States v. Stone, 2 Wallace, 525, the court say: "Patents are sometimes issued unadvisedly or by mistake,

where the officer has no authority in law to grant them. * ** In such cases courts of law will pronounce them void. The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority."

In Winter et al. v. Crommeling, 18 How. 87, the court say: "But if the executive officers had no authority to issue the patent because the land was not subject to entry and grant, then it is void, and the want of power may be proved by a defendant at law." (9 Cranch, 99.)

Although these decisions, with numerous others to the same effect, hold that a patent issued in violation of law conveys no title, and will be set aside, the principle applies even more forcibly, I think, to an entry merely, where the Government retains title, and has not executed a formal instrument of conveyance; and under the same principle I held in my decision of February 16, 1878, in the case of Carron v. Curtis* (Copp, April, 1878), that, "should it be shown, however, that valuable mines have been discovered on the tract before patent issues to the agricultural claimant, no patent should issue, as such discovery would determine the mineral character of the land, but the tract should be held subject to disposal as other mineral lands."

The appellant also claims that the right to a patent is equivalent to a patent issued. This is involved in my views above expressed, because if there is no right to a patent, none can legally issue. Undoubtedly the courts. have ruled as claimed, but their decisions are based upon the fact that the laws leading to the issue of a patent have been complied with; or, as the court say in Barney v. Dolph, 7 Otto, 652, "after the right to it is complete;" or, in Witherspoon v. Drake, 4 Wall. 200, "according to the well-known mode of proceeding at the land office, if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate is executed and delivered, and thereafter the land ceases to be a part of the public domain. But it is insisted that there is a * See No. 6.

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difference between a cash and a donation entry-that the one may be complete when the money is paid, but the other is not perfected until it is confirmed by the General Land Office, and the patent issued. In neither case can the patent be withheld if the original entry was lawful.” Same rule applies to "private entry.”

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An entry made in fraud, or in violation of law, vests no right which is equivalent to a patent, any more than a patent issued under like circumstances vests a title. Nor am I able to appreciate any difference in principle as claimed by the appellant between a cash "private entry and an entry under other laws, as respects the right to a patent. They must each comply with the requirements of law, before any right obtains, under the rule announced in the case of Witherspoon v. Drake.*

If, therefore, the lands embraced in the entry of Culver were in fact mineral lands, they can only be disposed of under the mineral laws, and his agricultural entry should be canceled. That these lands were not valuable for agriculture, clearly appears from the testimony. It also shows that although minerals have been known to exist in the locality of the lands in question for many years, and detached specimens of floating ore have been from time to time found on the surface, and mining excitements have previously occurred, no practical operations were prosecuted prior to 1878. During the early part of that year there was much prospecting, many mining locations were made and well-defined lodes found to exist. The shaft of the "Minnesota" claim was sunk to a depth of about forty feet and about three hundred and fifty pounds of ore taken from it, which the testimony indicates to be valuable. Many other lesser shafts were sunk, and practical miners from California and Nevada testify to the mineral character of the land.

These facts tend to show that Culver made his entry with full knowledge of the mineral character of the land, and that in fact he made it for mineral, and not for agricultural purposes.

* Failure of government surveyors to segregate mineral from agricultural lands, can not operate to defeat the rights of occupant miners. Gold Hill Q. M. Co. v. Ish, 5 Oregon, 104.