be accepted as a universal rule in dealing with the public lands. But when we are confronted with the administration of the school land grants, railroad grants, and other grants of a like character, we find the land department disposed to discriminate in some instances between those substances which are obviously mineral and those which, owing to the advancement in science and the industrial arts, become classified commercially or scientifically as mineral products.

138. Petroleum lands. Thus the land department, in a very recent case decided by Secretary Hoke Smith,' has held that petroleum is not a mineral within the meaning of the mining acts, and that lands containing it, though in sufficient quantities to render them more valuable for that purpose than for any other, are not mineral lands, and may be selected by the state in lieu of lost sixteenth and thirty-sixth sections.

The same secretary had in a previous instance ruled that petroleum lands could not be appropriated under the mining laws; and, of course, his ruling as to state selections logically followed.

Secretary Smith in his first decision makes the statement that the first mention of petroleum in connection with the mineral laws was in the case of Maxwell v. Brierly, wherein Secretary Teller classifies petroleum as a mineral product, not in a case involving petroleum lands, but by way of a general recital as to what substances in his judgment should be classified as mineral.

Mr. Smith evidently overlooked the fact that General Burdett, while commissioner of the general land office (1875), had established a rule, which succeeding administrations followed that petroleum claims might be entered under

the mining act of 1872.1

1 Chandler v. State of California, Oct. 27, 1896.

2 Ex parte Union Oil Co., 23 L. D. 222.

3(1883), 10 Copp's L. O. 50.

Copp's Min. Lands, 160.

In 1882, Commissioner McFarland announced that, according to the practice of the department, lands containing petroleum had theretofore been entered as placers and patented as such, and that such lands were subject to entry and disposal according to the law and regulations relating to placer claims.' This was also overlooked by Secretary Smith.

The cases of Downey v. Rogers, Samuel E. Rogers,3 Roberts v. Jepson, and Piru Oil Company followed, and read in the light of the antecedent practice of the land department, recognize petroleum as a mineral product, and lands containing it in sufficient quantities to make them more valuable for oil purposes than for any other as being mineral lands. Secretary Smith comments on these four cases, and declines to accept them as tending to establish the doctrine for which we are contending.

The secretary cites the Pennsylvania case of Dunham v. Kirkpatrick, to the effect that a reservation of " mineral" in a deed does not include petroleum, although it is admitted petroleum is technically a mineral.

This decision is in conflict with prior cases decided in Pennsylvania, and has been practically overruled or its doctrine ignored by the same court in a later case.

8

The ruling of Secretary Smith as to the mineral character of petroleum is in direct opposition to a decision in the United States circuit court (ninth circuit), wherein Judge Ross, sitting as circuit judge, says:—

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"The premises in controversy are oil-bearing lands, the government title to which, under existing laws, can alone "be acquired pursuant to the provisions of the mining laws relating to placer claims." "

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1 In re A. A. Dewey, 9 Copp's L. O. 51.

22 Land Decisions, 707.

34 Land Decisions, 284.

4 Id. 60.

5 16 Land Decisions, 117.

6101 Pa. St. 36.

7 Stoughton's Appeal, 88 Pa. St. 198; Thompson v. Noble, 3 Pittsb. 201. See, also, 10 Morr. Min. Rep., 421, note 8.

Gill v. Weston, 110 Pa. St. 313.

Gird v. Cal. Oil Co., 60 Fed. 531, 532.

We think, considering the previous practice of the land department and its construction of the mining laws as applied to oil lands, as well as the weight of judicial decisions, Secretary Smith was in error in deciding that lands containing petroleum could not be acquired under the mining laws, but were open to selection under grants to the states.

2 139. Lands chiefly valuable for building-stone.While on the subject of a restricted meaning applied to the term "mineral lands" in administering the school land grants we might note, in passing, that the land department at one time held that lands chiefly valuable for buildingstone were not excepted from the grant to the state for school purposes,' although under the act of congress of August 4, 1892, such lands might be entered under the placer mining laws, and although by numerous decisions prior to the passage of that act the department held that they were subject to entry under the mining laws.3

Whatever may have been the rule as to this class of lands prior to the passage of the act of August 4, 1892, as then applied to the administration of land grants for school purposes, it is quite manifest that under the rule. announced by the supreme court of the United States in Mullan v. United States, hereafter cited,' that act was a legislative interpretation which for all future purposes classified lands containing valuable deposits of buildingstone as mineral lands, and they can not now be selected under the school land grants. We think the weight of authority sustains us in the view that they never could be so selected, subsequent to the passage of the placer laws of 1870 at least.

1 In re Joseph H. Harper, 16 L. D. 110; South Dakota v. Vermont S. Co., 16 L. D. 263.

The department in the later case of Paris Gibson (21 L. D. 327) declined to give its approval of the doctrine of the South Dakota case.

227 Stats. at Large, 264.

3 Bennett's Placer, 3. L. D. 116; McGlenn v. Wienbroeer, 15 L. D. 370; Maxwell v. Brierly, 10 Copp's L. O. 50.

140. In construing the term "mineral lands," as applied to administration of school land grants, the 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. We have digressed for the moment to discuss a question which might be more appropriately presented when dealing with the character of lands subject to appropriation under the so-called placer laws; but it seems necessary for us here to present the matter as introductory to the main subject presently under consideration.

There is nothing in the context of the school land-grant laws where the reservation of "mineral lands" appears which restricts the meaning of the term. If a restricted meaning is to be applied, it must be by reason of the relative position of the parties or the substance of the transaction.1

In considering this "relative situation of the parties, "and the substance of the transaction," to what point of time must we direct our attention in dealing with school land grants and rights asserted under them? To the date of the passage of the act making the grant or authorizing the selection, or the time when the state or its grantees become first entitled to assert a claim to a particular tract of land? Fortunately, this question has been satisfactorily settled for us; so that lengthy discussion will be avoided.

Prior to the passage of the coal land act of July 1, 1864,2 the land department did not regard or treat coal lands or coal mines as mineral lands, within the meaning of the prior acts of congress. This act provided:—

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3

"That when any tracts embracing coal-beds or coal"fields constituting portions of the public domain, and which, as mines, are excluded from the pre-emption act of 1841, and which, under past legislation, are not liable "to ordinary entry, it shall and may be lawful for the president to cause such tracts in suitable legal subdivis"ions to be offered at public sale to the highest bidder."

1 Stewart on Mines, 10-13. See, ante, 2 91.

213 Stats. at Large, 343.

3 In re Yoakum, 1 Copp's L. 0. 3.

Assuming that the above ruling of the land department was correct, prior to the passage of that act coal lands might be selected under previously enacted school landgrant laws.

In 1868, one Mullan applied to the state surveyorgeneral of California to purchase a half-section of land selected by the state under the act of March 3, 1853, in lieu of the corresponding half of a sixteenth section theretofore lost to the state. His application was favorably considered, and in due process of time the secretary of the interior listed the land to the state, and Mullan or his grantee received a state patent. At the time Mullan instituted the proceedings culminating in the listing and issuance of the state patent the land was notoriously coal land, and was being actually worked for its coal deposits by the Black Diamond coal company. These facts were brought to the attention of the government, and suit was instituted in its behalf to vacate the listing. The case was tried before the late Judge Sawyer, in the circuit court of the United States (ninth circuit), who held that whatever might have been originally the proper construction of the word "mines," as used in the pre-emption act of 1841, the act of July 1, 1864, gave a legislative construction to the term which thenceforth attached to all known" coal-beds or coal-fields" in which no interest had before become vested, and withdrew such coal lands from the operation of all other acts of congress; that thereafter known coal lands were not subject to selection by the state as lieu lands; and that the state has no indefeasible rights to select such lieu lands from any particular class of lands.

The supreme court of the United States affirmed this decision, thus summing up its views:

"At the time the selection was actually made therefor, "it cannot be doubted that the land was mineral land, both "in law and in fact, within the meaning of the act under "which the state, and those who purchased from the state,

1 United States v. Mullan, 7 Saw. 466.

2 Mullan v. United States, 118 U. S. 271.