the adoption by the land department of the now recognized rules of interpretation.

In the instructions issued to the commissioners appointed under the act providing for the classification of mineral lands within railroad grants in Idaho and Montana, the secretary was not unmindful of the injunction contained in that act, "That all said lands shall be classified as "mineral which, by reason of valuable mineral deposits, "are open to exploration, occupation, and purchase under "the provisions of the United States mining laws." Is this not a legislative declaration that no lands which are subject to entry under those laws shall be patented to a railroad company? We think it is, although we are of the opinion that this was the law prior to the passage

of this act.

2159. Test of mineral character of land applied to railroad grants.- We think we are amply justified in here reiterating the doctrine applied by us to the administration of school land grants.

The question whether a given tract of land within the primary, or place, limits of a railroad grant is mineral, and therefore excepted out of the grant, is to be determined according to the state of the law and the facts as they exist at the time the railroad company applies for its patent. If the mineral character is then established according to the rules announced in section ninety-eight, then it does not pass under the grant.

With respect to indemnity selections, the state of the law and the facts as they exist at the time of the selection is alone to be considered. If the lands sought to be selected fall within the rules announced in section ninety-eight, they cannot be selected by the railroad company.

These rules apply to all railroad grants to the extent. that they remain unadministered. As we shall hereafter see, a patent issued to such companies is conclusive evidence that the lands are non-mineral. Consequently,

120 Land Decisions, 351.

changed conditions arising after the issuance of patents or final approval of selections cannot affect the title.

160. Classification of railroad lands under special laws in Idaho and Montana.-To facilitate the administration of the land grants to the Northern Pacific railroad, and to provide for a more expeditious method of determining the character of lands within the primary and indemnity limits of this grant in the states of Idaho and Montana, congress, on February 26, 1895, passed an act, entitled "An "act to provide for the examination and classification of "certain mineral lands in the states of Montana and Idaho."1

This is the act referred to in section one hundred and fifty-eight. It establishes an auxiliary board, consisting of three commissioners for each state, appointed by the president, whose duties are to make examinations in their respective districts, take testimony of witnesses, and generally to investigate the mineral or non-mineral character of the lands within the railroad limits in their respective jurisdictions.

The act makes provision for determining protests and controversies relative to the character of lands, the results of all such investigations to be reported through the customary channels to the land department. The action of this board only becomes final upon the approval of its reports by the secretary of the interior.

It is unnecessary to here detail the particulars of the act. The functions of the board are largely those of referees or "roving commissioners" under the equity pratice; and in this aspect it is a mere adjunct of the land department. The secretary of the interior, shortly after the passage of the act, issued elaborate instructions, prescribing the duties. of the commissioners, under which they are now acting.

The act, however, possesses some general features of more than passing interest. In addition to the definition of the term "mineral lands," referred to in the preceding section, it provides that in determining the character of the lands.

128 Stats. at Large, 683.

220 Land Decisions, 351.

the commissioners may take into consideration certain conditions which, according to the previous rulings of the department and the courts, have not been considered as elements of controlling weight.

Thus, where mining locations have been made or patents issued for mining ground in any section of land, this shall be taken as prima facie evidence that the forty-acre subdivision within which it is located is mineral land. It is further provided that the examination and classification of lands shall be made without reference or regard to any previous examination, report, or classification; that the commissioners shall take into consideration the mineral discovered or developed on or adjacent to such land, and the geological formation of all lands to be examined and classified, or the lands adjacent thereto, and the reasonable probabilities of such land containing valuable mineral deposits because of its formation, location, or character.

These provisions seem wise and beneficent. As the railroad company has no vested right to any particular class of lands, the rules established by the act can work no legal hardship. What is lost to the company in the place limits may be compensated by selections within the indemnity limits. Nor do we think, taking a common-sense view of the situation, that any cause of complaint could be urged by any land-grant road to which similar laws might be made applicable, even where there are no provisions for indemnity selections. Judge Sawyer' and Judge Hawley have both held that lands reasonably supposed to be mineral do not pass to the railroad companies; and the mineral character of a given tract may be reasonably inferred from geological conditions and local environment. It is to be hoped that the experiment will prove beneficial, and that like provisions may be made for the adjustment of all railroad land grants within the mineral regions.

1 Francœur v. Newhouse, 40 Fed. 618.

2 Valentine v. Valentine, 47 Fed. 597.

2161. Effect of patents issued to railroad companies. -The supreme court of California has held in several cases that in an action at law a patent issued to a railroad company can be attacked by showing that the lands in controversy are mineral lands.1

These decisions were based upon the construction of patents which contained the reservation of "all mineral "lands, should any be found to exist." Judge Sawyer, in the case of Cowell v. Lammers," has conclusively shown that this exception is void, not being authorized by law. However, in later cases the supreme court of California has recognized the rule that when a law of congress provides for the disposal of certain public lands, upon the ascertainment of certain facts, the officers of the land department have jurisdiction to inquire into and determine those facts, and the patent issued thereupon is a conclusive declaration that the facts have been found in favor of the patentee, and that this rule applies to the determination of the particular character of the land which is the subject of the patent.3

The federal courts, whose views, in the end, on a question like this must prevail,' have from the beginning unhesitatingly announced the rule that the land department has jurisdiction to determine the character of lands, and its determination, culminating in the issuance of a patent, is conclusive. Such patent is not open to collateral attack.

1 McLaughlin v. Powell, 50 Cal. 64; Chicago Q. M. Co. v. Oliver, 75 Cal. 194; Hunt v. Steese, 75 Cal. 620.

210 Saw. 246.

Gale v. Best, 78 Cal. 235; Irvine v. Tarbat, 105 Cal. 237; Dreyfus v. Badger, 108 Cal. 65.

Gale v. Best, 78 Cal. 240.

5 Barden v. N. P. R. R., 154 U. S. 288; French v. Fyan, 93 U. S. 169; Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Smelting Co., 106 U. S. 447; Dahl v. Raunheim, 132 U. S. 260; Parley's Park S. M. Co. v. Kerr, 130 U. S. 256; United States v. Winona & St. P. R. R., 67 Fed. 948; Carter v. Thompson, 65 Fed. 329. See, also, King v. Thomas, 12 Pac. 865; Manning v. San Jacinto Tin Co., 7 Saw. 419; Butte & B. M. Co. v. Sloane, 40 Pac. 217; Ah Yew v. Choate, 24 Cal. 562 (state patent); Poire v. Wells, 6 Colo. 406; Meyerdorf v. Frohner, 3 Mont. 282.

If mineral lands have been patented under railroad or homestead laws, and were known to be such prior to final entry and certification, such patents may be vacated by the United States.1

Authorities might be multiplied indefinitely. Sufficient space has been devoted to this subject at this juncture. We shall have occasion to recur to it again when considering the force and effect of federal patents generally, in a later portion of the work.

2162. Conclusions. We are authorized to deduce the following general conclusions from the foregoing exposition of the law:

(1) That lands embraced within the primary, or place, limits of a railroad grant, whose mineral character is known or established at any time prior to the issuance of a patent, are not patentable to the railroad company, and are excepted out of the grant.

(2) Lands mineral in character within the indemnity limits of any railroad grant, where indemnity selections are authorized by the act, can not be selected in lieu of lands lost to the company within the place limits.

(3) Whether a given tract within either the primary or indemnity limits is mineral or not must be determined according to the state of the law and facts as they exist at the time patent is applied for or application to select is made. Until patent is issued or selections are finally approved, the land department retains jurisdiction to pass. upon the character of the land; and its judgment, culminating in the issuance of a patent or final approval of a selection, is conclusive, and not open to collateral attack.

(4) The term "mineral land," as used in the reservation clauses of railroad grants, includes all valuable deposits, metallic and non-metallic, which are or may be subject to

W. P. R. R. v. United States, 108 U. S. 510; McLaughlin v. United States, 107 U. S. 528; Mullan v. United States, 118 U. S. 271; United States v. Mullan, 7 Saw. 466; United States v. Reed, 12 Saw. 99; United States v. Culver, 52 Fed. 81; Gold Hill Q. M. Co. v. Ish, 5 Ore. 104.