reservations, made under special circumstances, where only the timber is reserved from general destruction, and a taking for mining purposes, either on the reservation or to be used in close proximity thereto, is authorized by law, executive rule, or both.1 1 Act of June 3, 1878 (20 Stat. at L. p. 88), 1 Supp. R. S. U. S. 166, applies to Colorado, Nevada, New Mexico, Arizona. Utah, Wyoming, the Dakotas, Idaho and Montana. This has also been extended by executive order under the act above referred to. See also as to Colorado, Act of February 20, 1896 (29 Stat. at L. 11), 2 Supp. R. S. U. S. 447. CHAPTER V. RAILROAD GRANTS-MINERALS EXCEPTED FROM THE GRANT. § 197. Railroad grants and reservations- Their kinds and legal effect. 198 Construction of railroad grants-Illustrations of grants in præ senti-Floats. 199. Selection and filing map exhausts the right. 200. Mining rights on the right of way. 201. No valid discovery on right of way - Extra-lateral rights. 202. Railroad grants in which mineral lands were withheld. 203. Policy of the government to reserve minerals. 204. Early definition of mineral lands-“Known minerals." 205. Earlier decisions overruled - Minerals and mineral lands reserved, known or unknown. 206. The cases distinguished-The rule stare decisis not departed from. 207. Patent conclusive as to title in the absence of fraud. 208. Lieu lands-Their selection and quality. 197. Railroad grants and reservations- Their kinds and legal effect.- So far as material to this work, the law governing the acquisition of mining claims conflicting with railroad grants involves the consideration of three propo sitions: 1. The grant itself, primarily of the given number of oddnumbered sections on each side of the line of the road as definitely located. 2. The right of way absolutely, with only the ultimate fee reserved to the government, if abandoned utterly, with an easement in some cases running with the land, reserved to an adjoining proprietor, of the right to penetrate the right of way in following a vein on the dip or downward course. 3. The reservation of the mineral land and the selection of lieu lands, with attendant rights and duties. As a general rule, railroad grants are construed as grants in præsenti, and operate for some purposes by relation to the date of the act; while for other purposes, as, for instance, their operation upon lands containing minerals, they are not effective for such purposes until the patent is actually issued. § 198. Construction of railroad grants - Illustrations of grants in præsenti - Floats.- We noticed in the last section that railroad grants are construed as grants in præsenti. In applying the principle of a grant in præsenti to the locus in quo, any limitation, reservation or exception is likewise applied at the same time, even though the facts upon which the reservation is based are subsequently developed. Thus, the supreme court of the United States, speaking through Mr. Justice Field, in a leading case forcibly illus trated this doctrine in the following words: "It is also true that the grant was one in præsenti of the lands to be afterwards located. From the immense territory from which the sections were to be taken it could not be known where they would fall until the line of the road was established; that the grant attached to them, subject to certain specified exceptions; that is, the sections, or parts of sections, which had been previously granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, were excepted, and the title of its other sections, or parts of 1 Deseret Salt Co. v. Tarpey, 142 U. S. 247; Barden v. Northern Pac. Ry. Co., 154 U. S. 288; Leavenworth, L. & G. Ry. Co. v. United States, 92 U. S. 741; Smith v. Northern Pac. Ry. Co., 58 Fed. Rep. 513, 7 C. C. A. 397; St. Joe & Denver City Ry. Co. v. Baldwin, 103 U. S. 426; Grinnell v. Railway Co., 103 U. S. 739; Kansas Pac. Ry. Co. v. Dunmeyer, 113 U. S. 529; St. Paul & Pac. Ry. Co. v. Northern Pac. Ry. Co., 139 U. S. 1; Sioux City, etc. Land Co. v. Griffey, 143 U. S. 32; Wisconsin Cent. Ry. Co. v. Price County, 133 U. S. 509: sections, attached as of the date of the grant so as to cut off intervening claimants. In that sense the grant was a present one. But it was still, as such grant, subject to the exception of the mineral lands made at its date or then excluded therefrom by conditions annexed. Whatever the location of the section, and whatever the exceptions then arising, there remained that original exception declared in the creation of the grant. The location of the sections and the exceptions from other causes in no respect affected that one, or limited its operation. There is no language in the act from which an inference to that effect can be drawn, in the face of its declaration that all mineral lands are thereby 'excluded from its operations,' and the joint resolution of that no act of the thirty-eighth granting lands to states or corporations, to aid in the construction of roads, or for other purposes, shall be so construed as to embrace mineral lands.'" 1 congress congress It is well settled that until the filing of the map of definite location all railroad grants are mere floats, and that thereafter they attach to the particular land described in the grant, and the position of the road is thus fixed by the filing of the map of definite location.3 § 199. Selection and filing map exhausts the right.— The circuit court of appeals of the eighth circuit, in a case where this point was directly involved, makes the following clear statement of what seems to us to be the law: "It is also well settled that, so far as the land grant is con 1 Barden v. Northern Pac. Ry. Co., 154 U. S. 288-315; 13 Stat. at L. 567. 2 Barden v. Northern Pac. Ry. Co., 154 U. S. 288; Deseret Salt Co. v. Tarpie, 142 U. S. 241; Smith v. Northern Pac. Ry. Co., 7 C. C. A. 397, 58 Fed. Rep. 513; Wilkinson v. Northern Pac. Ry. Co., 5 Mont. 358; Central Pac. Ry. Co. v. Dyer, 1 Sawy. 641, Fed. Cas. No. 2552; St. Joe & Denver City Ry. Co. v. Baldwin, 103 U. S. 428: Bybee v. Oregon & Cal. Ry. Co., 139 U. S. 663; Western Pac. Ry. Co. v. Tevis, 41 Cal. 489. 3 Smith v. Northern Pac. Ry. Co., supra; Van Wyck v. Knevals, 106 U. S. 360; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629; Sioux City, etc. Land Co. v. Griffey, 143 U. S. 32. cerned, the line of the railroad was definitely fixed by filing with, and acceptance by, the secretary of the interior of the company's map of its line of definite location. The company thereby exhausted its right of selection, and so firmly anchored the land grant to this fixed line of its own choosing that it could not thereafter change or vary it, without legislative consent, so as to affect titles accruing thereunder or in any way affected thereby." 1 § 200. Mining rights on the right of way. The use of the term "right of way " in describing the four-hundred-foot grant is all that rescues it from an absolute grant of the fee. No mining rights, however, can be asserted on the right of way after the filing of the map of definite location, as the right of the railway company then becomes fixed, and even the reservation of mineral lands does not apply thereto.' The supreme court of Montana furnishes a logical example of this doctrine and gives adequate reasons for the rule above announced. We adopt the reasoning: "The mineral lands excluded from the operation of this act are evidently not those covered by the right of way, as nothing could possibly be given in lieu of any land which might be needed for such purpose; and it would be destructive of the rights of the railway company if mining claims could at any time be located and worked upon the track and land covered by the right of way. The joint resolution of congress of January 30, 1865, declaring that no act shall be so construed as to embrace mineral lands, which in all cases shall be and are hereby reserved exclusively to the United States,' cannot be considered as a reservation of mineral land from the operation of grants of the right of way, such as the one in question. A reservation of that character would annihilate the franchise, and annul the operation of the entire act of 1 Smith v. Northern Pac. Ry. Co., 7 C. C. A. 407, 58 Fed. Rep. 513. 2 Smith v. Northern Pac. Ry. Co., supra; Doran v. Central Pac. Ry. Co., 24 Cal. 245; Wilkinson v. Northern Pac. Ry. Co., 5 Mont. 538, 6 Pac. Rep. 349. |