CHAPTER XII. AGRICULTURAL LANDS. No. 1. Agent may execute non-mineral affidavits. No. 2. Land from which the mineral has been exhausted subject to agricultural disposal. No. 3. A person having claimed a tract of land as mineral, adversely to another, estopped from claiming same as agricultural. Construction of sec. 10, Act of 1866. No. 4. No. 5. No. 6. Status of mineral land patented as agricultural. Mineral discovered on land entered as agricultural, prior to issue of patent. No. 7. Mineral land subject to location when already entered as agricultural, provided patent has not been issued. No. 8. No. 9. No. 10. No entry to be allowed until contest determined. New claims, after party's entry has been regularly canceled. No. 11. Agricultural land valuable for the developement of a mining claim. No. 12. Same. No. 1. Agent, under certain circumstances, may execute and file the non-mineral affidavit. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Register and Receiver, Ironton, Missouri. GENTLEMEN: * * * When an entry is made by an agent who has examined the land, and his principal is not personally acquainted with the character thereof, the agent, upon filing his authority to act in the premises, and proof of the fact that his principal is not personally acquainted with the character of the land, may be permitted to make and file the non-mineral affidavit (required in agricultural entries). * * * Very respectfully, WILLIS DRUMMOND, Commissioner. No. 2. Mineral lands, upon which the mineral product has been exhausted and the mines abandoned, are subject to agricultural entry, if claimed in good faith. DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., May 6, 1872. SIR: I have considered the case of James Keena, preemption claimant, v. John Dillon et al., mineral affiants, in volving the right to the south-west quarter section twentyseven, township thirteen north, range eight east, Sacramento, California, coming up from your office on appeal by Keena. Keena has valuable improvements and extensive cultivation, extending to every subdivision of the tract. His good faith and compliance with the law are not disputed, and the only question to be decided is as to the character of the land, whether mineral or agricultural. The evidence taken on this point, though conflicting, is strongly in favor of the agricultural claimant. On September 9, 1870, to which time the case was continued by the local officers, the mineral affiants wholly made default, and Keena was permitted to make proof and payment. Exhausted and abandoned mines. I think it is fairly established, that though a small portion of the land at one time contained gold in paying quantities, that portion has long since been exhausted and abandoned, and that no part of the tract now contains that metal in sufficient quantities to pay for working; that nearly all the land is valuable for agriculture, and some portions are of unusual fertility. While the mining interests are entitled to, and must receive protection against the encroachments of persons who, under the guise of agricultural claimants, seek to secure title to large tracts of mining land, the rights of bona fide pre-emption and homestead claimants to lands proven to be agricultural are also entitled to the same protection against adverse combinations of miners. Your decision is reversed, and the papers in the case transmitted with your letter of the twenty-first ultimo are herewith returned. Very respectfully, B. R. COWEN, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office. No. 3. A party having claimed land as mineral, adversely to another, is estopped from claiming same land as agricultural. DEPARTMENT OF THE INTERIOR, WASHINGTON, March 23, 1876. SIR: I have considered the case of James J. Evans v. Cornelius B. Rendall, on appeal from your decision of June 8, 1875. The land in dispute is the W. half of the N. W. quarter of the S. W. quarter, and the S. half of the S. E. quarter of the N. W. quarter of the S. W. quarter of Sec. 35, T. 7 N., R. 12 E., M. D. B. and M., Cal. From the papers transmitted in this case, it appears that on the twenty-first of March, 1872, Rendall made an application at the local office for a patent of certain lands as mineral lands on sections 34 and 35 in said township, including those in dispute; that on the same day Evans made an application at said office for a patent of the N. W. quarter of the S. W. quarter of said section, claiming adversely to Rendall; and that thereupon an order of suspension was issued to Evans, and their applications, with others claiming adversely to Rendall, were duly certified to your office. In your decision of October 22, 1873, you held that Evans' application was "sufficient as a prima facie adverse showing," and that it would be necessary for him to commence suit in a court of competent jurisdiction to determine his right to the possession of the land in dispute, within thirty days after receiving notice of your decision. It further appears that, in accordance with your decision, Evans subsequently commenced an action against Rendall in the district court in which said land is situated, to have his rights thereto determined, and that at the trial had in said cause it was adjudged that he had no right, title, or interest therein. Since said trial and decision, Evans has filed a petition, accompanied with affidavits tending to show that the land is agricultural and not mineral, alleging that Rendall fraudulently seeks to obtain it from him, and asks to have the case reopened and the character of the land determined. Rendall has filed counter affidavits, showing the mineral character of the land, his continual occupation thereof, and mining improvements thereon, valued at four thousand dollars. Estoppel. I am of the opinion that Evans, having once sought to obtain this land as mineral land, adversely to Rendall, is estopped from alleging it to be of a different character; and that the decision of the court having jurisdiction of the case-that he has no right, title, or interest therein-must be considered final as to his rights thereto. Your decision is affirmed, and the papers transmitted with your letter "N" of August 27, 1875, are herewith returned. Very respectfully, Z. CHANDLER, Secretary. To the Commissioner of the General Land Office. No. 4. The tenth section of the act of July 26, 1866, was intended to give to persons who had in good faith made agricultural settlements on public lands theretofore designated as mineral, but subsequently determined as agricultural, a preference right over those mentioned in the eleventh section. DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., Dec. 14, 1872. SIR: I have examined the case of Ekin Smith v. Absalom Stewart, involving the right of said Smith to enter under the pre-emption law, as agricultural land, the S. W. quarter S. W. quarter section 31, T. 10 N., R. 10 E., and N. W. quarter N. W. quarter section 6, T. 9 N., R. 10 E., M. D. M., California, on appeal from your decision of August 6, 1872. Two questions are presented on appeal, one relating to the character of the land claimed, the other calling for a construction of the tenth section of the mineral act of July 26, 1866 (14 Stat. 253), on both of which questions your decision was adverse to the pre-emption claimant. After a careful review of the voluminous testimony taken before the local officers, I am satisfied that the land in controversy is mineral in character, and should be held for disposition under the mining statutes. It is claimed on behalf of the pre-emption claimant, that the tenth section of the act of 1866 gave to qualified persons who had, prior to the passage of said act, made homesteads on lands theretofore designated as mineral, and excluded from survey and sale, a right of pre-emption or homestead therein, unless, before the passage of said act, valuable mines of gold, silver, cinnabar, or copper had been discovered thereon; and, further, that the subsequent discovery of such mines did not affect the right of pre-emption or homestead thus acquired. Construction of section 10, act of 1866. I fully agree with you that this is not the proper construction to be given to the act referred to. Congress did not, I think, intend in this act to do away with the wellestablished distinction, so long recognized by legislation, between agricultural and mineral lands, or to allow lands actually mineral to be acquired under agricultural laws. I think the object of the tenth section was to give to persons, who had, in good faith, made agricultural settlements on public lands theretofore designated as mineral, but subsequently determined to be agricultural, a preference in preempting or entering the land as homesteads, over those admitted to similar rights by the eleventh section. The department has heretofore given this construction to the act in question, by approving your instructions of December second and seventh, 1871, and March 20, 1872, to the register and receiver at Stockton, California, directing the withdrawal from disposition under agricultural laws of certain lands theretofore classed as agricultural, until the non-mineral character of the same should be affirmatively established. I therefore affirm your decision, and return herewith the papers transmitted with your letter of the twenty-sixth ultimo. Very respectfully, B. R. COWEN, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office. No. 5. Status of mineral land patented as agricultural. GENERAL LAND OFFICE, CYRUS MADDEN, Esq., Port Orford, Oregon. SIR: In reply to the inquiry in your letter of June 15, 1873, I have to state that all mineral deposits discovered upon land, after United States patent therefor has issued to a party claiming under the laws regulating the disposal of agricultural lands, pass with the patent, and this office has no further jurisdiction in the premises.* Very respectfully, WILLIS DRUMMOND, Commissioner. * Moore v. Robbins, 6 Otto, 530. Quarter section containing lode claim.— The patentee of a quarter section entered as agricultural land, upon which |