38. Under a grant of school lands, "The State's title vests, if at all, at the date of the completion of the survey (Cooper v. Roberts, 18 How. 173; Virginia Lode, 7 L. D. 459); and, if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not devest the title which had already passed."

Abraham L. Miner v. State of California, 9 L. D. 409; State of California v. Poley, 4 C. L. O. 18; J. Dartt, 5 C. L. O. 178; Town of Silver Cliff v. State of Colorado, 6 C. L. O. 152; State of Colorado, 6 L. D. 412; 7 L. D. 490; Virginia Lode, 7 L. D. 459; Warren v. State of Colorado, 14 L. D. 681; Pereira v. Jacks, 15 L. D. 273; Frees v. State of Colorado, 22 L. D. 510; Com'r to J. A. Coffer, Oct. 3, 1891.

39. A State admitted before the survey of

lands is entitled to sections 16 and 36 under

its school grant, if they are not known to be mineral at date of the approval of the survey, and a discovery of mineral thereon subsequently will not defeat the right of the State. The State acquires no rights, however, by an irregular survey which is approved and thereafter suspended. Virginia Lode, 7 L. D.

459.

40. Until lands are surveyed, a State can

Sawy. 466; 10 Fed. Rep. 785; 118 U. S. 271.

44. Land returned by the United States Surveyor General as mineral does not pass to a State under a school land grant. Giovanni Le Franchi, 3 L. D. 229.

45. An application to enter a school section in California under the coal land law should be received because under the grant to the State mineral lands are excluded. Com'r to Shasta Office, Nov. 3, 1874, 1 C. L. O. 135.

46. The exception of mineral lands from grants to States and railroad companies does not reserve from such grants lands containing other than the metalliferous minerals. Land containing a deposit of marble, though of fine quality, is not excepted from such grants. Com'r to Spokane Office, Aug. 13, 1896, In re Pacific Coast Marble Co. v. Northern Pacific R. R. Co. and State of Washing

ton. (Citing Tucker v. Florida Railway & Navigation Co., 19 L. D. 414; Wheeler v. Smith,

5 Wash. St. 704.)

47. An application for patent for land embracing a school section in the Territory of Dakota, alleged to be more valuable because of a stone quarry than for agricultural purposes, should be received notwithstanding an injunction from a court prohibiting the mineral applicant from trespassing on the alleged

denfeldt v. Daney G. & S. M. Co., 93 U. S. 634; 13 Mor. Min. Rep. 204. See, also, 10 Nev. 290.

41. Although there is no statutory reservation of land for school purposes in Alaska, as the government owns the land, the Secre tary of the Interior will order reserved from sale those lands used for educational purposes. Departmental Instructions, 18 L. D. 288.

42. Mineral lands are excluded from the school grant to California as well as from those to other States. Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167; Hermocilla v. Hubbell, 89 Cal. 5; Delaney v. Thomas, 2 C. L. O. 50; James Craig, 6 C. L O. 45; Silver Cliff Town Site v. State of Colorado, 6 C. L. O. 152; Boulder & Buffalo M. Co., 7 L. D. 54. Contra, Higgins v. Houghton, 25 Cal. 252; 13 Mor. Min. Rep. 195.

43. Coal lands are excepted from State grants as mineral by the act of June 1, 1864

159.

48. School sections containing coal are subject to disposal as mineral lands. Charles Norager, 10 C. L. O. 54.

49. Coal entries may be made on sections 16 and 36 in the Territories. Henry Wood, 2 L. D. 762.

50. Land surveyed prior to the admission of a State, and known to contain coal at the date of such admission, does not pass under a grant of school lands to the State. State of Montana v. Buley, 23 L. D. 116.

51. Coal declaratory statements for land in sections 16 and 36 may be received, with opportunity accorded the State to show why they should not be allowed. State of Colorado, 7 L. D. 490.

52. One who applies for patent for a lode claim situate in a school section may be allowed to show that the land was known to be mineral in character at the date of the admission of the State and hence excepted from

the grant to the State. Fleetwood Lode, 12 L. D. 604.

53. Mineral lands are excepted from grants to States even though not expressly reserved by the terms of the grant. Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167; Keystone Lode and Mill Site v. Nevada, 15 L. D. 259.

54. The act of August 4, 1892 (27 Stat. 348), does not constitute lands chiefly valuable for building stone "mineral lands," in the general sense in which the term "mineral" is used

in the reservation of "mineral lands" from

61. Land returned as mineral in character is not subject to selection by a State as school indemnity land, until the return has been overcome by testimony submitted after publication of notice, under paragraph 110 of the Mining Circular as amended July 2, 1894 (19 L. D. 21). State of California, 22 L. D. 402.

62. The fact that sections 16 and 36 are

mineral lands, and therefore excepted from the grant of school lands to the State of California, does not give the State the right to

select lands in lieu thereof. State of Cali

55. A mineral entry of land principally valuable for ordinary building stone, allowed under the then existing practice (prior to Departmental decision, In re Conlin v. Kelly, 12 L. D. 1), excepts the land so entered from the operation of a subsequent grant to a State for school purposes, and may be passed to patent. Paris Gibson, 21 L. D. 327.

56. General grants of indemnity lands to States, act of May 20, 1826 (4 Stat. 179). Act of Feb. 26, 1859 (11 Stat. 385).

57. The act of February 28, 1891, amendatory of sections 2275 and 2276, United States Revised Statutes, provides generally for the selections of indemnity lands by States where the land which would otherwise pass to them by grants of school land is mineral in character, or reserved or claimed. Indemnity may also be taken for school lands not yet surveyed, embraced in a reservation. 26 Stat. 796.

58. An act to enable the State of Colorado to take lands in lieu of the sixteenth and thirty-sixth sections found to be mineral lands. Approved April 2, 1884 (23 Stat. 10). 14 C. L. O. 57, 58, 260; 11 C. L. O. 29; State of Colorado, 6 L. D. 412.

59. The legislation subsequent to the act of 1819, while resulting in a particular method for the disposition of the mineral land, did not operate to repeal the said act or to abridge the right of the State to the sixteenth section, or to select indemnity therefor. State of Alabama, 15 C. L. O. 7.

60. Indemnity selections may be made in lieu of mineral lands yet unsurveyed, but which it is known will fall in sections 16 or 36 when surveyed. Com'r to La Grande Office, Nov. 21, 1894.

1891 (26 Stat. 796).

63. Lands known to be valuable for coal are not subject to indemnity selection by the State of California for lands lost under its school land grant, and, if a patent issues to the State for lands so known at date of issuance of patent, the United States may bring suit in equity to vacate the patent. Mullan

v. United States, 118 U. S. 271; 7 Sawy. 466; 10 Fed. Rep. 785.

64. If lands claimed by a State under the grant excepting mineral lands are discovered to be mineral before certification to the State, they do not pass under the grant. State of California, 7 L. D. 490. (Contrary to other Departmental decisions, and expressly overruled in case of Abraham L. Miner v. State of California, 9 L. D. 408.)

65. The State of Utah having had no grant of saline lands, such lands therein are not subject to sale under the act of January 12, 1877 (19 Stat. 221). Salt Bluff Placer, 7 L. D. 549.

66. Lands between high and low tides on the shores of navigable waters are reserved to the States, and mineral lands thereon cannot be sold by the United States. Frank Burns, 10 L. D. 365; William E. Morris, 9 C. L. O. 5; Com'r to W. C. Renfrow, March 14, 1892.

67. A mining claim located below lowwater mark on a navigable river in California is not patentable, such land belonging to the State. Com'r to S. T. Dunlap, June 30, 1892.

68. Absolute property in, and dominion and sovereignty over, the soils under the waters in the States are reserved to the sev eral States, and the new States have the same rights, sovereignty and jurisdiction in that respect as the original States possess within their respective borders. Knight v. United

States Land Ass'n, 142 U. S. 161. (Citing Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Mumford v. Wardwell, 6 Wall. 423; Weber v. State Harbor Commissioners, 18 Wall. 57; Ward v. Mulford, 30 Cal. 365.)

3. Patent.

(See PATENT, p. 264.)

69. "The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act and requires the judgment of the court." United States v. Stone, 2 Wall. 525. (Quoted approvingly in Mullan v. United States, 118 U. S. 271.)

70. Patent evidences a grant, and the presumption is that all acts have been performed and all facts have been shown which are prerequisites to its issuance. Green v. Barker, 66 N. W. Rep. 1032.

71. Where a tract of land was certified to the Central Pacific Railroad Company as agricultural in character, no minerals being known to exist therein, the legal title passed, and the discovery of minerals thereafter cannot affect the rights of the railroad company thereto. Samuel W. Spong, 5 L. D. 193.

72. Certification by the Commissioner of the General Land Office to a State, of lands selected by the State as indemnity for losses under its school grant of sections 16 and 36, has the full force and legal effect of the issuance of a patent to the State. Durand v. Martin, 120 U. S. 366; McCreery v. Haskell,

121 U. S. 327.

73. A patent issued to a State under a school land grant for known mineral lands 1 will be vacated on suit by the United States. United States v. Mullan, 7 Sawy. 466; 10 Fed. Rep. 785; 118 U. S. 271.

74. If land known to be valuable for mineral is patented to a railroad company under a grant excepting mineral lands, the United States has such an interest in the matter as would warrant the Secretary of the Interior in recommending suit to vacate the patent. Bullock v. Central Pacific R. R. Co., 11 L. D. 590.

75. On the allegation, duly corroborated, that certain land patented to a railroad company was in fact excepted from the grant by reason of its known mineral character, a hearing may be directed to ascertain whether the facts justify judicial proceedings for the recovery of title. Bullock v. Central Pacific R. R. Co., 11 L. D. 590.

76. A patent to a railroad company is not conclusive evidence that the land is non-mineral in character, and a party claiming under a subsequent mining patent may show that the land is mineral, and upon such showing being made his title will be quieted. Chicago Qtz. M. Co. v. Oliver, 75 Cal. 194.

77. Lands not known to be mineral in character at the date of the issuance of patent therefor to a railroad company pass by the patent, even though the grant to the company excluded mineral lands. Samuel W. Spong, 5 L. D. 193.

78. If mineral lands have been patented to a railroad company they are not subject to location or patent under the mining laws until the railroad patent has been set aside. G. D. Smith, 13 C. L. O. 28.

4. Mining Claim.

(See MINING CLAIM, p. 1.)

79. “A valid and subsisting location of mineral lands made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States, of the right of present and exclusive possession of the lands located." Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795; Russell v. Chumasero, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508; Branagan v. Dulaney, 2 L. D. 744.

80. Mining claims held by possessory title are property in the fullest sense of the word, and may be sold, transferred, mortgaged and inherited, and a location in accordance with law has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510. (See 3 Mont. 65.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611; Manuel v. Wulff, 152 U.S. 505. See 9 Mont. 279; 23 Pac. Rep. 723.

82. The location of a mining claim and the maintenance thereof confers a vested right in the nature of a grant from the United States, and the locator may not be divested of such right without it is by the exercise of the right of eminent domain, in which case he must be compensated therefor. Robertson

v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196.

83. A valid location of a mining claim ex-| cepts the land located from the public domain as by a grant. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076.

84. To make the grant effectual, the location must be distinctly marked on the ground, and the record must contain such a description as will identify the claim by reference to some natural object or permanent monument. Neither the grant nor the right of possession attach to locations that do not give the notice required. Hauswirth v. Butcher, 4 Mont. 299; 1 Pac. Rep. 714.

85. Mining claims should be conveyed by deed, being realty granted by the United States mining laws. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287. Contra, Union Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323; Table Mtn. T. Co. v. Stranahan, 20 Cal. 198; 9 Mor.

Min. Rep. 457; Gatewood v. McLaughlin, 23 Cal. 178; Patterson v. Keystone M. Co., 23 Cal. 576; Hardenbergh v. Bacon, 33 Cal. 381.

86. The statutory grant to miners of the right to explore and occupy public mineral lands should be liberally construed. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. 87. Where section 2336 does not apply by reason of a conveyance by the locator to his grantee of a portion of the claim, the ordinary rule governing grants must of necessity apply, and if the intersection of the vein

5. General.

88. The general policy of the British, Spanish and Mexican governments relative to the reservation of mines in grants, discussed. Moore v. Smaw and Fremont v. Flower, 17 Cal. 199; 12 Mor. Min. Rep. 418.

land in California, issued upon confirmation of 89. A patent from the United States for claims held under grants by the Mexican government, invests the patentee with the ownership of the precious metals which the land may contain. Moore v. Smaw, 17 Cal. 199; 12 Mor. Min. Rep. 418; Fremont v. Flower, 17 Cal. 199 (1860–61).

90. Patents in confirmation of Mexican grants invest the patentee with ownership of precious metals. Ah He v. Crippen, 19 Cal. 491; 10 Mor. Min. Rep. 367; Moore v. Smaw, 17 Cal. 199; 12 Mor. Min. Rep. 418 (1860–61).

91. The location of a mining claim on land within the limits of a Mexican grant sub judice confers no right if the grant be afterward confirmed. Manning v. San Jacinto Tin Co., 7 Sawy. 418.

92. A claimant under a Mexican grant must protect his rights by filing an adverse claim and instituting suit thereon. If he fails so to do he can appear only as a protestant, and as such has no right of appeal from a decision of the General Land Office dismissing his protest. McGarrahan v. New Idria M. Co., 3 L. D. 422.

93. Lands within the claimed limits of a Mexican grant, as to which confirmation pro ceedings are pending, are not subject to location and entry under the mineral land laws. Com'r to H. E. Travis, Feb. 8, 1894.

94. Nor may such lands be embraced in a mineral survey. Com'r to Surveyor General of Arizona, Jan. 15, 1892.

95. Lands within a confirmed Mexican grant are not public lands, and are not subject to acquisition under the mineral land laws. Com'r to Charles Lanzendorfer, July 7, 1893.

96. The Statute of Limitations does not commence to run against parties claiming

98. The selection and location of lands known to be mineral might be properly vacated; but the right to select other land in lieu thereof would be barred unless made within the statutory period. Baca Float No. 3, 14 C. L. O. 133.

99. Legislative grants are to be construed against the grantee. Dubuque & Pacific R. R. Co v. Litchfield, 23 How. 66-68; Rice v. Railroad Co., 1 Black, 358; Leavenworth, etc. R. R. Co. v. United States, 92 U. S. 733-747; Missouri, etc. R. R. Co. v. Kansas Pacific R. R. Co., 97 U. S. 491-497; Hall v. Russell, 101 U. S. 503-509; Hamilton, etc. Co. v. Hamilton, 146 U. S. 258; Oregon Ry. & Nav. Co. v. Oregon Ry. Co., 130 U. S. 1. (Especially corporate powers under general statute.) Boteller v. Dominguez, 130 U. S. 238. (Spanish grants in California, Act of March 3, 1851, 9 Stat. 631.) 100. Grants by the United States of its public lands bounded by streams or other waters, made without reservation relative thereto, are to be construed, as to riparian rights, according to the law of the State in which the land is situate. Hardin v. Jordan, 140 U. S. 371.

101. The act of 1866 (sec. 2339, U. S. Rev. Stat.) had three objects: 1. Confirmation of existing water rights. 2. Grant of right of way over public lands for construction of flumes or canals for mining or manufacturing purposes. 3. Grant of right to occupants of public lands to sue for damages caused by construction of such flumes or canals. Hobart v. Ford, 6 Nev. 77; 15 Mor. Min. Rep. 236.

REPEAL PROVISIONS.

TITLE LXXIV.

SEC. 5595. The foregoing seventy-three titles embrace the statutes of the United States general and permanent in their nature, in

force on the 1st day of December, one thousand eight hundred and seventy-three, as repointed under an act of Congress, and the vised and consolidated by commissioners apsame shall be designated and cited as The Revised Statutes of the United States.

SEC. 5596. All acts of Congress passed prior to said first day of December, one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said tion applicable thereto shall be in force in lieu revision, are hereby repealed, and the sec

thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature: Provided, That the incorporation into such revision of any general and permanent provision, taken from an act making appropriations, or from an act containing other provisions of a private, local or temporary character, shall not repeal, or in any way affect any appropri ation, or any provision of a private, local, or acts, but the same shall remain in force; and temporary character, contained in any of said all acts of Congress passed prior to said lastnamed day no part of which are embraced in said revision, shall not be affected or changed by its enactment.

Although the original mining statutes may have had a larger or more limited application than those now in force, they were specifically repealed by section 5596, United States Revised Statutes, unless they were embraced in the revision of the statutes. Deffeback v. Hawke, 115 U. S. 392. (Citing United States v. Bowen, 100 U. S. 508.)

SEC. 5597. The repeal of the several acts embraced in said revision, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal, but all rights and liabilities under said acts shall continue, and may be enforced in the same manner, as if said repeal had not been made; nor shall said repeal, in any manner affect the right to any office, or change the term or tenure thereof.

SEC. 5598. All offenses committed, and all

penalties or forfeitures incurred under any statute embraced in said revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect, as if said repeal had not been made.

SEC. 5599. All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures, embraced in said revision and covered by said repeal, shall not be affected thereby, but all suits, proceedings or prosecutions, whether civil or criminal, for causes arising, or acts done or committed prior to said repeal, may be commenced and prosecuted within the same time as if said repeal had not been made.