grants which provide for indemnity or lieu selections, as well as for lands" in place."

Grants of particular sections or of lands "in place" do not acquire precision until the lands are surveyed and the line of the road is definitely fixed. Until such time the grant is said to be a float. Such grants are, however, grants in præsenti. They attach to particular tracts as soon after the filing of the map of definite location of the road as these tracts become identified by survey; and when so identified, title vests in the company, in the absence of legal impediments, by relation as of the date of the passage of the act. This is too well settled to require argument. The authorities in support of it are numerous and uniform.'

While this is true as to such lands as are within the purview of the grant, it is not to be inferred that the mineral or non-mineral character of the land is to be determined as of the date of either the survey or filing the map of definite location.

This question came before the circuit court of the United States for the ninth circuit, northern district of California, upon the demurrer to the complaint in the case of Francœur v. Newhouse, wherein the late Judge Sawyer announced the rule that the exception of mineral lands from the grant to the Pacific railroads only extended to lands. known to be mineral and apparently mineral at the time when the grant attached; and a discovery of a gold mine in the lands after the title has vested in the company by full performance of the conditions did not defeat the title of the railroad company, although at the time of the discovery no patent had been issued to the railroad.

1 Van Wyck v. Knevals, 106 U. S. 360; Kan. P. Ry. Co. v. Dunmeyer, 113 U. S. 629; St. Paul & Pacific R. R. Co. v. N. P. R. R. Co., 139 U. S. 1-5; Sioux City & I. F. T. L. & L. Co. v. Griffey, 143 U. S. 32; Smith v. N. P. R. R., 58 Fed. 513; United States v. S. P. R. R., 146 U. S. 570; Schulenberg v. Harriman, 21 Wall, 44, 60; Missouri, K. & T. R. Co. v. Kansas Pac. R. R. Co., 97 U. S. 491; St. Joseph & Denver C. R. Co. v. Baldwin, 103 U. S. 426; N. P. R. R. v. Wright, 54 Fed. 67; S. P. R. R. v. Whitaker, 109 Cal. 268; McLaughlin v. Menotti, 89 Cal. 354.

240 Fed. 618.

Subsequently, at the trial of this cause, the same judge charged the jury to the same effect; that the words "min"eral land," as used in the act of congress, meant land known to be mineral at the time the grant took effect and attached to the specific land in question, or lands which there was satisfactory reason to believe were such at said time; that only such land as was known to be mineral, or which there was satisfactory reason to believe was mineral, at the time the grant attached to the land is excepted from the grant. The doctrine thus announced was maintained or accepted in several later cases in the same circuit."

The case of Northern Pacific Railroad v. Barden, arose in the same circuit in the district of Montana, the hearing being had before Judges Sawyer and Knowles. Judge Sawyer reiterated his views as expressed in the FrancœurNewhouse case; but Judge Knowles dissented, holding that the mineral character of the land might be established at any time prior to the issuance of the patent to the railroad company, and when so established such land was not within the purview of the grant, and the title thereto never vested in the company.

This case went to the supreme court of the United States on writ of error,' and that tribunal settled the controversy. The grant there under consideration was to the Northern Pacific railroad, under the act of July 2, 1864, heretofore referred to. It appeared that the line of the road opposite and past the lands in controversy became definitely fixed on July 6, 1882, by filing with the commissioner of the general land office the required plat. The quartz-mining claims were on an odd-numbered section of the railroad grant, within the "place," or "primary," limits, and were discovered in 1888. Prior to such discovery, the railroad company had applied to the government to have the section in question certified to it under its grant, and such

1 Francœur v. Newhouse, 43 Fed. 238.

2 Valentine v. Valentine, 47 Fed. 597; N. P. R. R. v. Barden, 46 Fed. 592; N. P. R. R. v. Sanders, 49 Fed. 129; N. P. R. R. v. Cannon, 54 Fed. 252. 346 Fed. 592.

Barden v. N. P. R. R., 154 U. S. 288.

application had been approved by the commissioner of the general land office; but no action had been taken thereon by the secretary of the interior. The land in question had been returned by the surveyor-general as agricultural land.

Upon this state of facts the supreme court of the United States enunciated the following rules of law:

(1) The Northern Pacific railroad company cannot recover under the grant to it by the act of congress of July 2, 1864, mineral lands from persons in possession thereof who have made locations, although the mineral character of the land was not discovered until the year 1888, no patent having been issued to said company therefor;

(2) It was the intention of congress to exclude from the grant of lands to the Northern Pacific railroad company actual mineral lands, whether known or unknown, and not merely such as were at the time known to be mineral;

(3) The reservation in the grant of mineral lands was intended to keep them under government control for the public good, in the development of the mineral resources of the country, and for the benefit and protection of the miner and explorer, instead of compelling him to litigate or capitulate with a stupendous corporation and ultimately succumb to such terms, subject to such conditions, and amendable to such servitudes as it might see proper to impose;

(4) The government has exhibited its beneficence in reference to its mineral lands, as it has in the disposition of its agricultural lands, where the claims and rights of the settlers are fully protected. The privilege of exploring for mineral lands was in full force at the time of the location of the definite line of the road, and was a right reserved and excepted out of the grant at that time.

This is the law of the land; and in the light of these rules all grants to railroads are to be construed and administered. A discovery of mineral on lands falling within the primary, or place, limits of any railroad grant, at any

time prior to the issuance of the patent, if it be demonstrated that such lands are in fact mineral, within the meaning of that term as defined by the current of judicial authority, establishes the fact that the lands are not within the grant, and title thereto never vested in the railroad company.

It will be observed that the grant in question in the Barden case was one which in addition to the grant of alternate sections also granted indemnity to the Northern Pacific railroad, in lieu of such lands as might be lost to it by reason of their mineral character. In the decision of the court this fact is noted. But we do not apprehend that this element was of controlling force. The same principles of law as applied to grants which contain indemnity provisions apply with equal force to grants which do not contain them, such as the original Pacific railroad act of July 1,1862. In the former class of grants, congress has simply declared that the grant as to quantity should not suffer diminution. In the latter, congress has simply granted the lands to the railroad company to the extent that they are of the class which are properly patentable under the act. To the extent that the lands within the limits are within the reservation clauses, then, and to that extent, the grant as to quantity is diminished.

155. Construction of railroad grants by the land department. The rule announced by the supreme court of the United States in the Barden case was always followed by the land department in administering railroad grants. This fact is so stated in the decision in that case, and the ruling announced by Secretary Noble in C. P. R. R. v. Valentine' is thus quoted at length:

"The very fact, if it be true, that the office of the patent. "is to define and identify the land granted, and to evidence "the title which vested by the act, necessarily implies that "there exists jurisdiction in some tribunal to ascertain "and determine what lands were subject to the grant and

111 Land Decisions, 238, 246.

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capable of passing thereunder. Now, this jurisdiction is "in the land department, and it continues, as we have seen, "until the lands have been either patented or certified to or for the use of the railroad company. By reason of "this jurisdiction, it has been the practice of that department for many years past to refuse to issue patents to "railroad companies for lands found to be mineral in char"acter at any time before the date of the patent. Moreover, "I am informed by the officers in charge of the mineral "division of the land department that ever since the year "1867 (the date when that division was organized) it has "been the uniform practice to allow and maintain mineral "locations within the geographical limits of railroad grants, "based upon discoveries made at any time before patent, or "certification where patent is not required. This practice "having been uniformly followed and generally accepted "for so long a time, there should be, in my judgment, the "clearest evidence of error, as well as the strongest reasons "of policy and justice, controlling before a departure from "it should be sanctioned. It has, in effect, become a rule "of property."

2156. Distinctions between grants of sixteenth and thirty-sixth sections to states and grants of particular sections to railroads.-Grants to railroads of particular sections bear a striking resemblance to the grants to the states of sixteenth and thirty-sixth sections for school purBoth are grants in præsenti. But in cases of school grants no patents issue to the state. The state has nothing. to do or perform as a condition precedent to the taking effect of the grant. Nor is any action of the land depart

poses.

This case involved the same property in controversy in Valentine v. Valentine (47 Fed. 597). The author was counsel for the mineral claimant in both proceedings. Before the land department the inquiry was limited to the present character of the land. In the circuit court, under the previous ruling in that circuit in Francœur v. Newhouse (40 Fed. 618), the inquiry was addressed to the date of the passage of the railroad act and the filing of the map of definite location. The ruling of the secretary in the case before the land department has been quoted approvingly and followed in later cases. North Star M. Co. v. C. P. R. R., 12 L. D. 608; N. P. R. R., 13 L. D. 691; Winscott v. N. P. R. R., 17 L. D. 274; N. P. R. R. v. Marshall, Id. 545; N. P. R. R. v. Champion Cons., 14 L. D. 699. See, also, the earlier cases of C. P. R. R. v. Mammoth Blue Gravel, 1 Copp's L. O. 134; G. D. Smith, 13 Copp's L. O. 28.