published notice of application for a mineral patent to the lands applied for has been held to be sufficient notice to all claimants, and we do not see why the same rule should not be applicable to school grants. On the other hand, a mineral claimant may attack the right of a state or its vendee to the tract, although returned as agricultural, in the ordinary tribunals, by showing that at the date of the survey or admission of the state, as the case may be, the land was known to be mineral, and did not pass to the state."

As sixteenth and thirty-sixth sections pass to the state in the absence of legal impediment, without certification, by the survey propria vigore, or by the admission of the state, there is no preliminary adjudication, actual or presumed, by the land department as to the character of the land, as there is in the administraton of floating grants, or even in railroad grants of particular sections. There is no antecedent judgment, as there is in pre-emption or homestead cases, which is final and conclusive upon collateral attack. It follows that the question may be raised at any time by any one in privity with the government of the United States. The holder of a valid subsisting mining location is in such privity."

With reference to the state selecting lieu lands, or lands in satisfaction of its floating grants, it is not precluded from applying for lands returned as mineral. It has a right to contest this return, and establish upon hearings ordered for that purpose the non-mineral character of the land, the same as any other applicant to purchase or make private entry of public lands.

But before such selection can be preliminarily accepted, the state must "prove the mineral off," upon notice given of a hearing for that purpose.1

IN. P. R. R. v. Cannon, 54 Fed. 252.

2 Hermocilla v. Hubbell, 89 Cal. 5.

3 Id.

4 Am. rule 110, regulations of the department, 19 L. D. 5; State of California, 22 L. D. 294; Id., on review, 22 L. D. 402; Com'rs' Letter, Copp's Min. Dec. 40.

145. Conclusions.

From the foregoing exposition

of the law, we deduce the following conclusions:

(1) That lands embraced within sixteenth or thirtysixth sections, known to be mineral in character at the date of the final approval of the survey, where such approval becomes effectual subsequent to the admission of the state, do not pass to the state, but remain a part of the public mineral domain, subject to exploration and purchase, the same as other public mineral lands. Where the surveys have been approved prior to the admission of the state, and at the date of such admission the lands are known to be mineral, a like result follows. The lands do not pass to the state, but remain subject to disposal by the government under the mining laws.

(2) The state may not select as lieu lands, or lands in satisfaction of its floating grants, any tract whose mineral character is known or established prior to the final approval of the selection and listing to the state.

(3) Where sixteenth and thirty-sixth sections are returned by the surveyor as mineral, and the state accepts this return and selects other lands in lieu thereof, both the state and general government are estopped from thereafter asserting that the lands are non-mineral.

(4) Where such sections are returned as mineral, and the state does not accept the return as establishing the character of the land, it has a right to its "day in court" for the purpose of impeaching the return. Where it desires to select lands, either in lieu of sixteenth and thirtysixth sections or under its floating grants, which lands are returned by the surveyor-general as mineral, it has a right to "prove the mineral off," and, if successful, to have such. lands listed to it.

(5) Whether or not a given tract is of a known mineral character at the time the grant or selection would take effect, in the absence of legal impediments, must be determined by the facts as they exist at that time, and the then state of the law, as recognized by the current of judicial authority.

from the operation of 159. Test of mineral character of

railroad grants.

153. Grants of rights of way.

154. Grants of particular sections as construed by the courts.

2155. Construction

of railroad grants by the land department.

land applied to railroad grants.

2160. Classification of railroad lands under special laws in Idaho and Montana.

161. Effect of patents issued to railroad companies.

2162. Conclusions.

149. Area of grants in aid of railroads, and congressional legislation donating lands for such purposes. From the year 1850 to June 30, 1880, congress granted to states, territories, and railroad corporations, in aid of the construction of railways, upwards of one hundred and fifty million acres of the public domain. Of these, more than one hundred million acres were within the preciousmetal-bearing states and territories.'

Prior to 1862, grants of this character were generally made to states as trustees and agents of transfer for the benefit of companies projecting the railways; but with the passage of the Pacific railroad act, July 1, 1862, was inaugurated a complete change in the system of land bounties to aid in the construction of railroads. The grants were thenceforward direct to the corporation. As to grants

made prior to 1862, we have no particular concern. Most, if not all, of the roads extending into the mineral regions 3 Public Domain, 267.

1 Public Domain, 273-287.
212 Stats. at Large, 489.

E

of the west received their donations either under the Pacific railroad acts of 1862 and 1864 or under acts subsequently passed.

It is not within the purview of this treatise to deal with railroad grants in any respect, other than as the operation of such grants within the precious-metal-bearing states and territories requires us to analyze the general character of the grants, and to determine the nature and extent of the things granted, the time when such grants take effect as to particular tracts, and such collateral questions as may be incidentally necessary to elucidate or explain the reasons for the rules established by the courts and the land department in administering the various grants.

For this purpose it will not be necessary to enumerate or discuss all the acts of congress granting lands in aid of the construction of railroads, but it will be sufficient for us to take as a basis certain pronounced types. So far as the scope of this treatise is concerned, these types represent features common to all grants. While there may be limitations in some of the later acts which do not appear in the selected types, and perhaps larger privileges and immunities are conferred by some than by others, yet in so far as the administration of the grants within the mineral regions and their application and effect with reference to mineral lands is concerned, we do not understand that there is any opportunity for differentiation.

150. Types of land grants in aid of the construction of railroads, selected for the purpose of discussion. -We select for the purpose of discussion the following acts and resolutions of congress:

(1) An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the government the use of the same for postal, military, and other purposes (approved July 1, 1862),1 and the act amendatory thereof (approved July 2, 1864).2

112 Stats. at Large, 489.

213 Stats. at Large, 356.

(2) An act granting lands in aid of the construction of a rail road and telegraph line from Lake Superior to Puget's Sound on the Pacific coast by the northern route (approved July 2, 1864).1

(3) Joint resolution reserving mineral lands from the operation of all acts passed at the first session of the thirtyeighth congress granting lands or extending the time of former grants.2

A consideration of the grants provided for by these acts, taken in connection with the joint resolution of congress, will enable us to present the subject under discussion fairly, to note the adjudicated cases, and from them formulate what we understand to be the rules to be applied in construing and administering grants of this character according to the existing state of the law.

151. Character of the grants.-The act of July 1, 1862, granted to the corporations therein named, commonly called the "Pacific railroad companies," rights of way over the public lands to the extent of two hundred feet in width on each side of the road, together with all necessary grounds for stations, buildings, workshops, and depots, machine-shops, turn-tables, switches, side-tracks, and water-stations. In addition, there was also granted every alternate section of public land not sold, reserved, or otherwise disposed of, designated by odd numbers, to the amount of five alternate sections per mile on each side of the respective roads, on the line thereof, and within the limits of ten miles on each side of said roads.

The amendatory act of July 2, 1864, enlarged this grant from five to ten alternate sections, and the lateral limits from ten to twenty miles. Neither of these acts contained any provision authorizing the selection of indemnity lands in lieu of odd-numbered sections, which might be subsequently ascertained to be lost to the companies by reason. of their prior sale, reservation, or other disposition.