66 "the corner-stone of which is the completeness and invul"nerability of the title of the patentee. It is worthy of notice, that in these cases the land in question had been 'granted by the Mexican government, with reservation of "the precious metals, the deposits of which that government has always claimed to own, and the ownership of "which therefore passed, under treaty, unimpaired by the "agricultural grants, to the United States. Nevertheless, "it was held that, in confirming the Mexican grants and issuing its patents for the territory, the United States actually conveyed to the patentees rights which they had "never obtained from Mexico, on the broad principle that "the unqualified grant of a patent for land' gives all. In "other words, though the United States might have reserved "the mineral right, it could only have done so in explicit 'terms, failing which, all its interests passed with its pat"ent. The wisdom of this timely decision is universally "admitted. Unquestionably it saved us from an intoler"able chaos and confusion." 1 46 Before leaving this subject, it may be well to invite attention to another class of grants made by congress, in satisfaction of rights asserted, having their origin under the Mexican rule. In several instances, in recognition of equities, congress has authorized claimants to select certain lands in lieu of those originally claimed. This authorization is generally accompanied with a restrictive clause prohibiting the selection of mineral lands. Under these conditions, the land department administers the grant, and necessarily in doing so passes upon the character of the land. The duty devolves upon the claimant to establish the non-mineral character of the lands selected." Should any lands be included within the selection which are determined, as a present fact, to be mineral in character, as that term is defined and understood by the land department and the courts, a segregation would be required as to such lands, and patent would issue for the remainder. Such patent when issued would be conclusive that the 1 The Force of the United States Mineral Land Patent, Mineral Industry, vol. iv., p. 781. 2 Baca Float No. 3, 13 L. D. 624. land was non-mineral and it could not be thereafter collaterally assailed.1 2127. Grants which have been, or may be, finally confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona. As we have heretofore said with reference to this class of grants, the government has made a radical departure from its established policy. It proposes to absolutely reserve not only mines of gold, silver, and quicksilver, which might be held to apply to known or opened mines, but the reservation extends to the minerals of this class. In effect, with reference to lands falling within this category, the government establishes the rules of law in force in Mexico at the time of the treaty of cession, and adopts the regalian doctrine prevalent under the civil and common law and in the different countries of Europe. It is so opposed to the antecedent policy of the government, so inconsistent with all its legislation during the last half-century, at least, and so thoroughly inconsistent with the land system which prevails in other portions of the public land states and territories, that we hardly know how to deal with it. These provisions of the law looking to the the reservation of the minerals of gold, silver, and quicksilver fairly bristle with legal interrogation marks. What are mines of gold and silver? In the great case of mines (the Queen v. the Earl of Northumberland), it was held that mines of the baser metals, such as copper and lead, which contained gold or silver, were royal mines, and were reserved to the crown; and it required acts of parliament in the reign of William and Mary to change this rule. To what extent may the government utilize this privilege, and enjoy the reserved estate? Certainly it can not 1 Carter v. Thompson, 65 Fed. 329; Dahl v. Raunheim, 132 U. S. 260; Steel v. Smelting Co., 106 U. S. 417; Cowell v. Lammers, 10 Saw. 247; Manning v. San Jacinto Tin Co., 7 Saw. 419; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Butte & B. M. Co. v. Sloan, 40 Pac. 217; Id., 16 Mont. 97; Gale v. Best, 78 Cal. 235. K extend the operation of the general mining laws over the patented grants. The act does not sanction the carving out of any defined quantity of surface area to be used in connection with mining operations. If we are left to the rule applicable in cases of individuals, it could occupy only so much of the surface as was necessary in the usual and reasonable course of working;' and this would necessarily vary in each particular instance, dependent upon the character of the ore and its mode of occurrence. Neither the government nor its licensees could condemn rights of way or surface ground for mining purposes under the law of eminent domain; for mining is not a governmental function, nor is it a public use. Besides, the right of eminent domain is a right of municipal sovereignty, to be exercised in accordance with the rules prescribed by the individual states. It is true that the act contains the saving grace which inhibits any one without the consent of the owner of the grant from working the mines "until "specially authorized thereto by an act of congress, to be hereafter passed," thus preventing a general invasion by enterprising explorers of the possession of the grant-owner, and giving congress an opportunity to readjust its legislation in this behalf, to harmonize with the established policy of the government. We do not see why a preliminary investigation as to the character of the land embraced within a claimed grant should not be authorized, and the mineral lands segregated, as in the case of railroad grants, homestead entries, and donations to states for educational purposes. If it is objected that a surface examination might not disclose the mineral possibilities, the answer is that such is often the case with other classes of titles on the public domain. A discovery of mineral upon lands after they have been patented under the homestead, townsite, railroad, school, or other grants, would not defeat the patent or enable the government, or any one else, to abridge the right of the 1 MacSwinney on Mines, 282; Stewart on Mines, 33. patentee to the land granted, or sanction an intrusion upon his possession.1 We cannot see the propriety of adopting one policy with reference to by far the greater portion of the public domain, and another one, based on different theories, applicable to the remainder. While it may not be fairly within the author's privilege to speculate as to what troubles may arise, or what difficulties may be encountered in executing the act in question, we are very much inclined to believe that the reservation, in the form as now contemplated, will be a serious annoyance to both the government and the grant-owner, without any compensating features. 128. Conclusions.-From the foregoing exposition of the law, we are authorized to deduce the following conclusions: (1) No right can be acquired under the general mining laws to any mineral lands lying within the claimed boundaries of any Mexican grant, so long as the grant remains sub judice. (2) Lands lying within the exterior boundaries of a claimed grant are restored to the public domain, and become open to exploration and purchase under the mining laws, either (a) when the grant is finally rejected, or (b) where the claimant fails to present his claim for confirmation within the time fixed by law. (3) In case of floats, the surplus remaining after satisfaction of the grant becomes public domain when the action of the tribunals fixing the boundaries becomes final. (4) Final confirmation of a grant, and the patent issued pursuant thereto, convey to the grantee all the minerals, except as to grants falling within the jurisdiction of the court of private land claims created by the act of March 3, 1Cowell v. Lammers, 10 Saw. 246; Colo. C. & I. Co. v. United States, 123 U. S. 307; Pac. Coast M. & M. Co. v. Spargo, 8 Saw. 645; Richards v. Dower, 81 Cal. 44; Cooper v. Roberts, 18 How. 173; Davis v. Weibbold, 139 U. S. 507; McCormick v. Sutton, 97 Cal. 373; Smith v. Hill, 89 Cal. 122. 1891. As to the latter class of grants, the reserved minerals within the confirmed boundaries are preserved in statu quo until congress devises some means of disposing of them. Under the present state of the law, none of this last class of confirmed grants can be invaded for the purposes of mineral exploration, nor can any rights be initiated within their boundaries, under the general mining laws. A locator on such lands would be a naked trespasser, and could be ejected by the owner of the grant. ARTICLE III. GRANTS TO THE STATES FOR EDUCATIONAL AND INTERNAL IMPROVEMENT PURPOSES. 2132. Grant of sixteenth and thirty-sixth sections. 133. Indemnity grant in lieu of sixteenth and thirty-sixth sections lost to the states. 134. Other grants for schools and internal improvements. 135. Conflicts between mineral claimants and purchasers from the states. 136. Mineral lands excepted from the operation of grants to the states. 137. Restrictions upon the definition of "mineral lands," when considered with reference to school land grants. 2138. Petroleum lands. 139. Lands chiefly valuable for building-stone. 140. In construing the term "mineral lands," as ap- time to which the inquiry is addressed is the date when the asserted right to a particular tract accrued, and not the date upon which the law was passed authorizing the grant. 2141. Test of mineral character applied to school land grants. $142. When grants to the sixteenth and thirty-sixth sections take effect. 2143. Selections by the state in lieu of sixteenth and thirtysixth sections, and under general grants. 144. Effect of surveyor-general's return as to character of land within sixteenth and thirty-sixth sections, or lands sought to be selected in lieu thereof, or under floating grants. 2145. Conclusions. 132. Grant of sixteenth and thirty-sixth sections. -The ordinance of May 20, 1785, " for ascertaining the |