a third party cannot set up the fact of such settlement to defeat the title of the State. The case of the State of Colorado, 7 L. D. 490, overruled. Abraham L. Miner, 9 L. D. 408 (1889).

A mineral applicant for lands in section 16 in the State of Colorado may submit proof after due notice to the State that the land applied for was of known mineral character prior to and at the date of the admission of the State to the Union. Fleetwood Lode, 12 L. D. 604 (1891); Frees v. Colorado, 22 L. D. 510 (1896).

The act of March 21, 1864, providing for the admission of Nevada into the Union and for a grant of school lands, did not pass title to known mineral lands, although such lands were not in terms excepted from the grant. Keystone L. & M. Site v. State of Nevada, 15 L. D. 259 (1892).

In determining whether land is excepted from the school grant to California on account of its mineral character, the subject of inquiry is whether the land was mineral or not at the date of survey. Pereira v. Jacks, 15 L. D. 273 (1892).

Lands chiefly valuable for deposits of ordinary building stone are not excepted as mineral land from grants to a State for school purposes. The fact that the act of Aug. 4, 1892, provides that certain kinds of stone quarries may be entered under the placer laws, does not warrant the finding that such 'stone quarries constitute mineral lands in the sense in which such lands are held to be excepted from grants. South Dakota v. Vermont Stone Co., 16 L. D. 263 (1893). But where final entry of such land as a placer claim has been allowed, it will be thereby excepted from the subsequent operation of a school grant. Paris Gibson, 21 L. D. 327 (1895).

Lands known to be mineral at the date of the admission of Washington to the Union are excepted from the grant to the State, which may select other land in lieu thereof. Washington v. McBride, 18 L. D. 199 (1894).

The taking of a few wagon loads of coal from surface outcropping does not establish the existence of valuable mines so as to make the land known mineral land. Frees v. Colorado, 22 L. D. 510 (1896).

Under act of Congress, Feb. 28, 1891, all States are entitled to select indemnity for school sections lost to the State by reason of their mineral character. State of California, 23 L. D. 423 (1896).

III. LAND GRANTS TO RAILROADS.

Congress by various acts has granted to certain railroad corporations, land upon which to construct their roads, and also alternate sections of land lying contiguous to the road. Such are the Pacific Railroad Acts of July 1, 1862, and July 21, 1864. These acts contain exceptions of such sections as are mineral lands (see also Rev. Stats. 2346). This exception or reservation is absolute without reference to whether the land was known to be mineral or not at the time of the grant. These grants took effect in presenti, but no mineral land passed by them. The character of the land

is decided by the Land Department, and the discovery of mineral at any time previous to the issuance of patent, or certification where patent is not required, will except the land from the grant.

This position has been constantly adhered to by the Department, patents being refused to the railroads where minerals have been discovered previous thereto; and this has been decided to be correct by the Supreme Court of the United States in Barden v. Northern Pac. R. Co., 154 U. S. 288, by which a number of cases are overruled, in which it had been held that all land passed by the grant which was not known to be mineral at the time of the definite location of the road.1

When, however, a patent issues to the railroad or its grantee, it is conclusive, and cannot be attacked by those who claim that the land included therein was known to be mineral at the date of the grant. The question is always investigated by the Land Office before issuing a patent to the railroad; that decision is final, and after the patent has issued, no application for a mineral patent for the land or any part of it will be entertained.

In determining the character of these lands, the same test is applied as in determining what lands may be located as mines as against agricultural or other claimants. This has been discussed elsewhere. The procedure in the Land Office to determine the character of these lands is likewise the same."

The exception in the acts does not apply to the land occupied by the roadbed which may be upon mineral land, but applies only to the contiguous alternate sections granted.

Me Laughlin v. United States, 107, 526 (1882). The United States. patent in question, bearing date May 31, 1870, and issued to a railroad company, in professed compliance with the terms and conditions of the grant made by the acts commonly known as the Pacific Railroad Acts, out of which grant are excepted such sections as are mineral lands, covered lands which the bill alleged contained valuable quicksilver and cinnabar deposits, and were known to be mineral lands, when the grant was made and patent issued. This court, being satisfied that the material allegations of the bill are true, that as early as 1863 and since, cinnabar was mined upon the lands, and at the time of the application for a patent their character was known to the defendant, the agent of the company who now claims

1 Francœur v. Newhouse, 40 Fed. 618; 43 Fed. 236; and see dissenting opinion of Brewer, J., in Barden v. Northern Pac. R. Co.

See page 376, ante.

3 But see also Circular July 9, 1894, 19 L. D. 21, and Circular Aug. 15, 1894, 19 L. D. 105; Act Feb. 26, 1895, 28 Stat, 683; 20 L. D. 350, 561, 571; 21 L. D. 65, 68, 108.

them under it, affirms the decree cancelling the patent and declaring his title to be null and void.

Western Pac. Railroad Co. v. United States, 108, 510 (1882). Same case as last reported under different name.

Cowell v. Lammers, 21 Fed. 200 (1884), C. C. D. Cal. On June 27, 1867, under the acts of Congress of July 1, 1862, and July 2, 1864, a patent regular on its face was issued for the northeast quarter of section 17, township 9, range E, Mount Diabolo base and meridian, to the Central Pacific Railroad Company, to aid in the construction of its road. The patent expressly excepted all mineral lands, should any be found within the tract conveyed, but there was nothing to indicate that any part of such land was mineral land. In 1873 the company conveyed the land to M., who entered into possession, occupied, fenced, built upon, and cultivated the land until 1877, when he sold it to C., who also went into possession and cultivated and used the land. In 1881 L. entered upon a part of the land against the will of C., and claiming that it was mineral land, took up a mining claim thereon. Held, that L. could not by this unlawful intrusion initiate a right to a mining claim, and that the patent was conclusive when collaterally called in question, following Atherton v. Fowler, 96 U. S. 513; Steel v. Smelting Co., 106 U. S. 447.

Northern Pac. R. Co. v. Sanders, 49 Fed. 129 (1892), C. C. Ap., 9th Circ. The grant contained in sec. 3, act July 2, 1864, does not prevent persons taking up mining claims in the reserved lands after the filing of the map, but before the definite location of the road. It does not avail the railroad company that the lands so located are in fact non-mineral.

2

Northern Pac. R. Co. v. Cannon, 54 Fed. 252 (1893), C. C. Ap., 9th Circ. The act of July 2, 1864, granting lands to appellant in aid of the construction of its railroad, did not prevent persons from taking up and locating mining claims in the reserved lands at any time before the line of the railroad was definitely fixed, and the fact that land not mineral was so taken up, located, and claimed as mineral land prior to that time was of no avail to the railroad company claiming the same under its grant. In this case the map showing the general route of the railroad was filed in the office of the Secretary of the Interior in 1872, the mineral patents under which appellees claimed issued in 1878, and the line of the railroad was definitely fixed and a plat thereof filed in the office of the Commissioner in 1882. The mineral patents were held to prevail over the title of the railroad company.

The railroad was not entitled to personal notice of proceedings for obtaining a mineral patent under Rev. Stats. 2325. Appellant had an opportunity to initiate a contest under Rev. Stats. 2325, and had it done so would have been entitled to personal notice of all proceedings thereafter taken.

Barden v. Northern Pac. R. Co., 154, 288 (1894). Lands discovered to be mineral at any time before issue of patent to the railroad are excepted from the grant, and this exception will be made from the patent.

Field, J.: "Mineral lands were not conveyed, but by the grant 1 See Barden v. N. P. R. Co., post. 2 See Barden v. N. P. R. Co., post.

itself and the subsequent resolution of Congress cited were specifically reserved to the United States and excepted from the operations of the grant. Therefore, they were not to be located at all, and if in fact located, they could not pass under the grant."

"It is difficult to perceive the principle upon which the term 'known' is sought to be inserted in the act of Congress, either to limit the extent of its grant or the extent of its mineral, though its purpose is apparent. It is to add to the convenience of the grantee and enhance the value of its grant. But to change the meaning of the act is not in the power of the plaintiff, and to insert by construction what is expressly excluded is in terms prohibited. Besides the impossibility, according to recognized rules of construction, of incorporating in a statute a new term, one inconsistent with its express declarations — there are many reasons for holding that the omission of the word 'known,' as defining the extent of the mineral lands excluded, was purposely intended."

"Patents issued after an examination and determination of the fact by the government whether portions of the land embraced in such grants did or did not contain other minerals have been held as conclusive in subsequent controversies, and of this we shall speak more fully hereafter; but grants in aid of railroads (and we speak of no other grants) before such determination and issue of a patent have never been held to pass other minerals than iron or coal, and it is only with other minerals, and with lands containing them, that we are concerned in this case." "The act of Congress making the grant to the plaintiff provides for the issue of a patent to the grantee for the land claimed, and as the grant excludes mineral lands in the direction for such patent to issue, the Land Office can examine into the character of the lands and designate it in its conveyance. It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public. lands of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that Department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack."

"There are undoubtedly many cases arising before the Land Department, in the disposition of the public lands, where it will be a matter of much difficulty on the part of its officers to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands, and in such cases the rule adopted that they will be considered mineral or agricultural as they are more valuable in the one class or the other, may be sound. The officers will be governed by the knowledge of the lands obtained at the time as to their real character. The determination of the fact by those officers that they are one or the other will be considered as conclusive.”

California.

Doran v. Central Pac. R. Co., 24, 245 (1864). The right of way over a strip of land two hundred feet in width on each side of its road granted to the Central Pacific Railroad Company, by secs. 2 and 9, act of Congress, July 1, 1862, extends to and

covers all public land, whether mineral or not. The provise in section 3 of this act, excepting mineral lands from its operation, refers to the "alternate sections granted to the company and not to the right of way.

Mere occupants of mineral lands, who have entered the same for mining or other purposes, have no title or right under which they can maintain possession against the United States or its grantee.

Alford v. Barnum, 45, 482 (1873). The mere fact that land contains particles of gold or veins of gold-bearing rocks, does not necessarily impress it with the character of "mineral land" within the meaning of the acts of Congress of July 1, 1862, and July 2, 1864, granting alternate sections to the Pacific Railroad Company, but reserving mineral lands from the grant. It must at least be shown that the land contains minerals in quantities sufficient to render it available and valuable for mining purposes.

Gale v. Best, 78, 235 (1889).1 "If a large body of public lands be subjected to sale or other disposition under a law which has merely a general reservation of such parts of those lands as may be found to be of a particular character, as swamp or mineral, then the Land Department has jurisdiction to determine the character of any part thereof, and a patent is conclusive evidence that such jurisdiction has been exercised. In such a case the patent can be attacked only by a direct proceeding, and by a person who connects himself directly with the government." A grant of lands to a railroad company by act of Congress excepted mineral lands. Patent was issued containing no reservation. One locating a mining claim could not, as against the patent, show that the land was mineral.

Montana.

Wilkinson v. Northern Pac. R. Co., 5, 538 (1885). The provision in section 3 of the act incorporating the railroad company, excepting mineral lands from the grant of alternate sections, does not refer to the grant of the right of way contained in section 2. Such right may extend over and cover mineral lands of the United States. If at the time the right of way attaches such mineral lands are unoccupied, a subsequent location thereof and patent therefor are inferior to the right of way of the company, and must yield to the superior title without resort to a court of equity to set aside the patent. Merrill v. Dixon, 15, 401 (1880). In order to show that Nevada. land was mineral land, and as such excepted out of a grant to the Central Pacific Railroad Company, plaintiff offered to prove that the land had been returned and denominated copper, gold, and silver bearing quartz" on the map of the township regularly made and filed by the United States surveyor. This was properly excluded. Mineral lands within the meaning of the act of Congress are those which are valuable for mining purposes.

LAND OFFICE DECISIONS.

The location of a mill site upon land granted to the Central Pacific Railroad Company after their rights took effect could create no adverse right thereto as against the company, the land being non-mineral. Copp, 90 (1872).

1 Overrules Chicago Quartz M. Co. v. Oliver, 75 Cal. 194, and Hunt v. Sieese, 75 Cal. 620.