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"The United States occupy, with reference to their real property within the limits of the state, only the position of a private proprietor, with the exception "of exemption from state taxation, and their patent of "such property is subject to the same general rules of "construction which apply to conveyances of individ"uals. From the operation of conveyances of this "nature—that is, of individuals, -the minerals of gold "and silver are not reserved, unless by express terms. They pass with the transfer of the soil in which they "are contained. And the same is true of the operation "of the patent, the instrument of transfer of the govern"mental proprietor, the United States; no interest in "the minerals remains in them without a similar reser"vation.

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"The United States have uniformly regarded the "patent as transferring all interests which they could possess in the soil, and everything imbedded in or "connected therewith. Wherever they have claimed mines, it has been as part of the lands in which they "were contained; and whenever they have reserved the "minerals from sale or other disposition, it has only "been by reserving the lands themselves. It has never "been the policy of the United States to possess inter"ests in land in connection with individuals."'1

This doctrine seems logical. We are not aware of its ever having been seriously questioned. It was commented on and distinguished by the supreme court of New Mexico in a case involving a patent issued under a special act of congress, confirming a grant,2 to be hereafter discussed; but we do not think its force has been destroyed or weakened.

Unquestionably, the United States might have said to these claimants: "The title asserted by you as the

1Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123; Moore v. Smaw, Id. See, also, Ah Hee v. Crippen, 19 Cal. 492; Biddle Boggs v. Merced M. Co., 14 Cal. 279; Manning v. San Jacinto Tin Co., 7 Saw. 419, 9 Fed. 726.

8 • United States v. San Pedro etc. Co., 4 N. Mex. 225, 17 Pac. 337.

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grantee of the Mexican government did not convey "to you the right to the minerals of gold, silver, or quicksilver which are within your claimed grant. It "is not our purpose to convey to you lands containing "these metals; and before any title is bestowed upon you by this government, you must demonstrate that "the lands are non-mineral in character. If mineral "lands are found within your boundaries, they must "be segregated out, as in the case of pre-emption, home"stead, and other classes of grant, and you will be "given a title to the remainder."

Or it might have gone farther and offered a title reserving all minerals, as it is claimed was attempted in the later act applicable to Colorado, New Mexico, Arizona, Utah, Nevada, and Wyoming. But the government imposed no such conditions as to grants in California. Its patent passed everything it had acquired from the Mexican government, and the United States ceased to have any further concern with the land or its constituent elements.

1

A patent issued upon a confirmed Mexican grant passes whatever interest the United States may have had in the premises. It operates, in consequence, as an absolute bar to all claims under the United States having their origin subsequent to the petition for confirmation. It is, in effect, a declaration that the rightful ownership never had been in the United States, but at the time of the cession it had passed to the claimant or those under whom he claimed.2

If the grantee received more than he could have acquired from the Mexican government, it is not a matter

'Beard v. Federy, 3 Wall. 478, Adam v. Norris, 103 U. S. 591; More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. Rep. 1067; Henshaw v. Bissel, 18 Wall. 255.

'Adam v. Norris, 103 U. S. 591, and cases therein cited.

concerning which outsiders may lawfully complain. The United States might confirm and patent a Mexican grant for a much larger quantity of land than it was possible to be obtained under the Mexican law.1

Why did it not possess the same power with reference to the minerals? Possessing that power, it exercised it by issuing a patent containing no reservation. As a matter of fact, the California act did not authorize the insertion of a reservation; and if a patent issued under that law contained such, it would have been to that extent void, as being unauthorized.*

126. Grants confirmed by direct action of congress. -We are aware of no principle of law which permits us to draw distinctions beween the legal effect of a patent issued under an act of congress, directly confirming a grant, and one issued as a result of an investigation by tribunals created by congress for that purpose. We should not have divided the question, and placed direct congressional confirmation in a separate category, were we not confronted by a very able and thoughtful opinion promulgated by the supreme court of New Mexico,3 wherein that court announces the doctrine that an act of congress confirming to a claimant his title to a tract of land granted to him by the Mexican government under the colonization laws of Mexico and Spain, and a patent issued in accordance therewith, conveys no title to the mineral lands included in such grant.

The record in this case is very voluminous, and the

1 United States v. Maxwell L. G. Co., 121 U. S. 325, 7 Sup. Ct. Rep. 1015. Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; AmadorMedean G. M. Co. v. S. Spring Hill, 13 Saw. 523, 36 Fed. 668; Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858; Clary v. Hazlitt, 67 Cal. 286, 7 Pac. 701; Silver Bow M. and M. Co. v. Clark, 5 Mont. 378, 5 Pac. 570; Wolfley v. Lebanon M. Co., 4 Colo. 112.

3 United States v. San Pedro and Cañon del Agua Co., 4 N. M. 225, 17 Pac. 337.

opinion of the court lengthy. An epitome of the facts, the issues raised, and conclusions reached by the court are essential to a proper consideration of the force and value of the decision as a precedent. The confirmatory act in question is very short, and for convenience' sake we quote it:

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"Be it enacted, . . . That the grant to José Sera"fin Ramirez, of the Cañon del Agua, as approved by "the surveyor-general of New Mexico, January 20, "1860, and designated as number seventy in the transcript of private land claims in New Mexico, trans"mitted to congress by the secretary of the interior, "January 11, 1861, is hereby confirmed; provided, that "this confirmation shall only be construed as a relin"quishment on the part of the United States, and shall "not affect the adverse rights of any persons whomsoever.'

A patent was issued pursuant to this confirmation, describing the grant by metes and bounds, as shown in the field-notes of the approved survey, containing no reserving or excepting clauses other than the one provided for in the act.

The grant, as patented, included within its exterior boundaries rich and valuable mines of gold, silver, iron, copper, and lead, some of which were worked prior to the treaty of cession by Mexican citizens. Others were thereafter discovered, occupied, and developed by American citizens, it being generally understood that they were situated upon the public domain, and not upon private property.

Suit was brought by the government to vacate and annul the patent, on the ground that the claimant had, by a fraudulent conspiracy with the surveyor-general, his clerk, the deputy surveyor, and other persons, secured a survey of said claimed grant which included

'(June 12, 1866), 14 U. S. Stats. at Large, p. 588.

land not conveyed nor intended to be conveyed by the Mexican government; that this fraudulent survey, upon which the patent was based, embraced the mines, whereas a proper construction of the terms of the grant, as presented for confirmation, would have excluded them.

There was an abundance of evidence to substantiate the fraudulent character of the survey, and to sustain the ruling of the supreme court of New Mexico setting aside and annulling the patent.

But a supplemental bill had been filed in the trial court without objection which raised another legal issue. It was therein alleged as follows:

"That said defendant is now, and has been, in pos"session of large portions of said tract of land mentioned and described in said original bill of complaint "as being the property of the United States, and by "said fraudulent survey now included and embraced "within the boundaries mentioned and described in the "patent of the United States, as set forth in said bill "of complaint; and that said defendant is now in pos"session of many mines, leads, lodes, and veins of "mineral-bearing quartz or rock belonging to the "United States, and situated upon said tract of land, "the property of the United States. The said mines, "leads, lodes, and veins are very rich and valuable for "gold, silver, copper, and other ores. That said de"fendant claims said land, with its mines, leads, lodes, "and veins of mineral-bearing rock and mineral deposits, by and under said patent of the United States."

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This was followed by a prayer for an injunction prohibiting the defendant from mining or appropriating the ores.

Upon this issue, although the supreme court of New Mexico had determined that the patent, having been fraudulently obtained, was null and void, and therefore conveyed nothing, felt constrained to go farther, and