als to the United States. This certainly had the effect to restore minerals and mineral lands outside the survey to the same position as if no grant or interference there with had ever been made, with the added reservation of an additional right to be thereafter asserted as to any lands finally falling within the grant. Now, since it is a well-known rule of statutory construction, so well settled as to become a maxim of the law, that statutes in pari materia must be read and construed together, and since the subject of both statutes, that is to say, this special statute and the general mineral statutes of the United States,1 are upon the same subject, it must necessarily result that they must be read together, and when so read, what is the result? Manifestly the conclusion reached by the court: that these lands outside the adjudication are restored to and made a part of the public mineral domain of the United States, to be disposed of as other mineral lands. As to the lands within the settled grant the minerals are reserved. It must be confessed that this statute marks a radical departure from the long-established policy of the government. It may be only temporary in its operation, but as it stands it authorizes a reservation which may in some cases turn out to be as large as the grant, and thus defeat it. A further excuse for this policy is found in the notorious fact, knowledge of which is imputable to congress, that many of these claimed grants were initiated in fraud and are therefore spurious. Therefore the claimant takes his chances. The law stares him in the face, and if he shall lose his grant he is no worse off than under the Mexican government, where the minerals were reserved - the precious metals no treaty obligations have been violated. Congress, in order to have these claims adjusted on their merits, independent of any supposed mineral value to excite the cupidity of meritless claimants, has simply said: "Hands off until we settle the rights of these supposed grantees." We apprehend no difficulty from this reservation, as the right of ulti 1 R. S. U. S., § 2319 et seq. mate disposal is expressly reserved. Besides, as we shall see further on in this work,' if this were not so, the result would still be the same, because a reservation carries with it, as settled now by the great weight of authority, all the means necessary for its enjoyment, including the right of entry; and a qualified locator, going upon those lands at the proper time, with the license of the government, in the shape of its laws, supporting him, will pro hac vice occupy the position of the government, and therefore have an indisputable right. - § 184. Time for asserting right under Mexican grant – Waiver of right- The old rule under the California act. In 1851 congress passed an act providing for the adjustment of claims under Mexican grants in the state of California. This statute fixed a limitation of time within which claims should be made. This requirement was plain and unambiguous; it was notice to all the world, requiring the assertion of any claimed rights to such lands in the tribunal provided by law and within the time allowed by law, and if the right was not so asserted it was waived and the lands then became public lands. As was said by the United States supreme court in a leading case: "A failure, therefore, to present the claim within the required time, or a rejection of it, either by the commission, or by the district court, without seeking to obtain a review of their respective decisions, or by this court, rendered it unnecessary to reserve the claimed lands from settlement and appropriation. They then became public in the just meaning of that term, and were subject to the disposing power of congress." 2 § 185. Summary.- A summary of the authorities seems to justify the following conclusions: That ordinarily, and as a general rule, an undetermined grant, that is, one sub judice, has the effect to reserve the land claimed until determined, when any portion restored 1See post, Part XII, ch. IV. 2 Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769. to the public domain is open to location the same as though no claim had been made. To this there seems to be these exceptions: First. Where the grant is of a given size within larger boundaries, it is open, if enough remains from which to make the selection. Second. Where claimants neglect for the time prescribed to make their claim. Third. Where an adjudication has been had, although appealed from, that excluded by the judgment is restored and is open to location. Confirmed grants are equivalent to patent if land was properly taken, but if fraudulent, as mineral land taken for agriculture or settlement, or for colonization, they are open to attack by the government regardless of change of possession, for the reason that notice of such character is imputed to the confirmee and his grantee, and is a vitiating circumstance running with the land. The lands affected by the act of March 3, 1891, are withdrawn for the time being. But this is a reservation with right of entry reserved, and the confirmees take the land impressed with the burden. CHAPTER III. MILITARY RESERVATIONS. § 189. Authority for and effect of military reservations. 190. Question elaborately considered by the supreme court of the United States Authority of the president settled. 191. Manner of opening military reservations-Mining locations upon such reservations. 192. The present rule of the department-Mineral lands may be included in a military reservation, during which time the reservation is absolute. § 189. Authority for and effect of military reservations.-Military reservations selected by the president, either under special authority of congress, or ex officio as commander-in-chief of the army, are, during the existence of the reservation, and until abandoned and returned to the public domain (either by authority of congress or by order of the president), and all land embraced within any such reservation, is incapable of location as mineral lands, even though such land may contain mineral, and be in fact mineral land. The authority of the president, as commanderin-chief of the army and navy of the United States, to set aside and reserve public lands necessary to the use of the army, to be known as military reservations, has been so long recognized, both by congress and by the courts, that it may now be considered as settled. There are many instances of selections for sites for military purposes under authority of the act of congress above cited, and they were considered as containing ample authority therefor.2 1 The pre-emption act of congress, May 29, 1830, 4 Stat. at L. 421, 5 id. 455, 10 id. 246; Grisar v. McDowal, 6 Wall 363; s. C., 18 L. ed. 863; Stone v. United States, 2 Wall. 522; Wilcox v. Jackson, 13 Pet. 512; United States v. Railroad Bridge Co., 6 Mc- 2 Wilcox v. Jackson, 13 Pet. 512; § 190. Question elaborately considered by the supreme court of the United States - Authority of the president settled. Some dispute has arisen from time to time as to the authority of the president, or of the secretary of war acting under him, to create and establish military reservations, but it may be now said to be settled beyond controversy. In the last case before the supreme court of the United States, that court in discussing the power of the president said: "It only remains to notice the objection taken to the authority of the president to make the reservations in question. The objection is twofold: first, that the lands reserved did not constitute any part of the public domain, but were the property of the city (of San Francisco), and were not, therefore, the subject of appropriation by order of the president for public purposes; and second, if they did constitute a part of the public domain, they could only be reserved from sale and set apart for public purposes under the direct sanction of an act of congress." After considering that the city's title was not good, and on the question of the president's power, the court proceeds to say: "But further than this: From an early period in the history of the government it has been the practice of the president to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. The authority of the president in this respect is recognized in numerous acts of congress. Thus, in the pre-emption act1 it is provided that the right of pre-emption contemplated by the act shall not 'extend to any land which is reserved from sale by act of congress, or by order of the president, or which may have been appropriated for any purpose whatever.' Again, in the pre-emption act of September 4, 1841, 'Lands included in any reservation by any treaty, law or proclamation of the president of the United States, or reserved for salines or other purposes,' are exempted from entry under the act. So, by the act of 1 Act of May 29, 1830 (4 Stat. at L. 421). United States v. Railroad Bridge Co., 6 McLean, 527, Fed. Cas. No. 16,114, 27 Fed. Cas. 686. 25 Stat. at L. 455. |