vation or has disposed of them in some other way. It should be observed that when dealing with the right of the States to select lieu lands where homestead and preemption claims are involved, Congress first inserted language in the Act designed to create in individuals holding such claims rights superior to those of the States to the school sections upon which settlement before survey has been made. But in dealing with the selection of lieu lands where the Federal Government prior to survey has included the designated school sections in a reservation or has otherwise disposed of them, Congress did not find it necessary first to create the power in the Federal Government to make such reservations or dispositions. Rather, on the apparent assumption that such powers had been retained by the Federal Government and were presently existing, Congress merely provided for the selection of lieu lands by the States where upon survey it is found that those powers have been exercised. It is apparent that Congress intended that the Act of 1891 should apply to Wyoming as well as to the other schoolland States. Indeed, Wyoming on at least two previous occasions so contended and succeeded in obtaining benefits under the Act.25 We need not now consider the effect of the Act of 1891 insofar as it may be inconsistent with the provisions of the Wyoming Enabling Act, for it is our view that with respect to the problem of this case no inconsistency exists. It is not without significance, also, that in 1934, Congress, after having been fully apprised of the administrative construction of the school-land provisions of the Wyoming Enabling Act,26 which is in accord with the construction which we have made, amended § 5

24

24 H. R. Rep. No. 2384, 51st Cong., 1st Sess.

25 Wyoming v. United States, 255 U. S. 489 (1921); State of Wyoming, 27 L. D. 35.

26 H. R. Rep. 229, 73d Cong., 1st Sess.; S. Rep. No. 10, 73d Cong., 1st Sess.

of that Act but reenacted all the provisions of that section which are pertinent to the present case."

Defendants' view that, by virtue of the language of the Enabling Act, Congress extinguished the powers of the Federal Government subsequently to dispose of the unsurveyed school sections in the exercise of its governmental functions, admittedly would place Wyoming in a favored position among the school-grant States. Such a result does not accord with the congressional expectation that the school grant should have "equal operation and equal benefit in all the public land States and Territories." Defendants suggest no special circumstances or peculiar considerations of policy which convincingly indicate a purpose on the part of Congress to place Wyoming on other than an equal footing with other States with respect to the powers of the Federal Government in the unsurveyed school sections.

928

Furthermore, one of the important recurring problems faced by Congress during the period in which the Wyoming Enabling Act was passed was the necessity of reserving tracts of the public lands to accomplish such important purposes as preserving the national forests and mineral resources, establishing public parks, and the like.29 Vesting in the State an immediate and irrevocable interest in the school sections before such sections had been identified by survey would be to complicate the performance of the Government's obligation with respect to the public

27 748 Stat. 350. Section 5 of the Enabling Act was amended so as to permit the State to lease the school lands for periods of ten years as contrasted to a five year limitation contained in the section as originally enacted.

28 H. R. Rep. No. 2384, 51st Cong., 1st Sess., 1. S. Rep. No. 502, 51st Cong., 1st Sess., 1.

29 Thus the same volume of the Statutes at Large containing the Wyoming Enabling Act also contains at least two pieces of such legislation. 26 Stat. 478, 650.

Opinion of the Court.

331 U.S.

lands. That Congress intended such complication seems most unlikely when it is observed that the policy underlying the grant of lands to the State for school purposes could be achieved without producing that result. Thus § 4 of the Enabling Act makes provision for indemnification to the State where the designated school sections are disposed of for other purposes by authorizing the selection of lands by the State in lieu thereof. Section 6 of the Act of August 9, 1888,30 which was incorporated into § 4 of the Enabling Act "so far as applicable," specifically provides for the selection of lieu lands where the school sections "have been or shall hereafter be reserved for public purposes."

It is significant that for a period extending over half a century, the land decisions of the Department of the Interior have consistently taken the position that title to unsurveyed school sections passes to the State only upon completion of the survey, and prior to that time the Federal Government is not inhibited from making such reservations and dispositions of the lands as required by the public interest and as authorized by applicable statutes. Many of those decisions involved statutory language substantially identical to that in the Wyoming Enabling Act." We should be slow at this late date to upset the rulings "... of the department of the Government to which is committed the administration of public lands." 32

31

For the reasons stated above, we hold that at the date of her admission to the Union, Wyoming acquired no such

30 See note 7, supra.

31 South Dakota v. Riley, 34 L. D. 657; State of Montana, 38 L. D. 247; State of Utah, 53 L. D. 365. And see F. A. Hyde & Co., 37 L. D. 164; State of New Mexico, 52 L. D. 679. Also in accord are decisions in Utah v. Work, 55 App. D. C. 372, 6 F. 2d 675 (1925); Thompson v. Savidge, 110 Wash. 486, 188 P. 397 (1920).

32 California v. Deseret Water, Oil & Irrigation Co., 243 U. S. 415, 421 (1917).

440

Opinion of the Court.

interest in the lands in issue that could not be defeated by the inclusion of those lands in a petroleum reserve by the Federal Government acting prior to survey.

We also think that defendants' reliance on the Coleman survey of 1892 as the basis of an indefeasible equitable right to Section 36 is misplaced, and may be answered briefly.

That survey was undertaken pursuant to a request from the State to the United States Surveyor General that Township 58 be surveyed and subdivided, in order to permit the State to make selections of school lands, and the contract and instructions for the survey so directed. The survey which was then made, however, actually fixed only the boundaries of Township 58, and marked one-mile intervals on those boundaries, but did not subdivide the township. Section 36 lies in the township's southeast corner, and its southern and eastern boundaries are concurrent with part of the southern and eastern township boundaries, but the northern and western section boundaries remained undetermined. This was not a completed survey of Section 36.33

Defendants no longer contend that it was. They argue only that it "identified" Section 36, or made it "susceptible of identification by protraction," sufficiently that the State should in equity be held to have acquired vested rights in the Section as of the date this survey was approved. They claim support for this position in several decisions recognizing that the title of certain western railroads granted lands by the United States vested when the line of route was selected and a plan thereof filed, whether or not the adjacent lands had then been surveyed.**

33 R. S. 2395, 43 U. S. C. § 751. Barnhurst v. State of Utah, 30 L. D. 314; Harris v. State of Minnesota, Copp L. L. (1875–82) 631.

34 Cf. Santa Fe Pac. R. Co. v. Lane, 244 U. S. 492 (1917); St. Paul & Pac. R. Co. v. Northern Pac. R. Co., 139 U. S. 1 (1891); Grinnell v. Chicago, Rock Island & Pac. R. Co., 103 U. S. 739 (1881).

We find no merit in this argument. The railroad land grant cases are not apropos. Not only do they deal with statutes different from the one before us in the present case, but also they have nothing to do with the identification of unsurveyed lands by the protraction of partial surveys. In the Morrison case this Court held a completed but unapproved survey inadequate to vest any rights to school lands. A fortiori, defendants are not benefited by the Coleman survey.

35

For the foregoing reasons, defendants' exceptions to the master's findings and conclusions in respect to title are overruled.

Having decided that plaintiff has title to Section 36, we now turn to the question of its right to recover a money judgment because of the defendant Company's oil operations thereon.

36

It was shown that in 1917, under a lease from the State, the Company entered Section 36 and drilled five wells, some of which are still in production. For the period from the Company's entry on the land until December 31, 1944, there was evidence of the amount and market value of oil produced and of the capital and operating expenses of this production, each by the month, and of the collateral "steam earnings," the royalties and taxes paid to the State, and the overhead expenses allocable to this production, each by the year." For the purpose of proving the bad faith of the trespass, plaintiff offered

35 United States v. Morrison, supra, note 5.

36 Accounts for the period January 1, 1945, to date of hearing were to be prepared and submitted later, along with those for any subsequent periods for which defendants might be liable.

37 The total of each of these items for the entire period was as follows: value of oil produced, $167,049.54; steam earnings, $1,267.99; capital expenses, $118,628.84; operating expenses, $70,083.73; overhead expenses, $22,461.00; taxes, $4,317.40; royalties, $17,306.30. It does not appear what the nature of the so-called "steam earnings"

was.