possibility, according to recognized rules of construction, of incorporating in a statute a new term,― one inconsistent with its express declaration,- there are many reasons for holding that the omission of the word 'known,' as defining the extent of the mineral lands excluded, was purposely intended. The tract granted covered a belt believed to be rich in minerals of gold and silver, and the United States were engaged at the time in a terrific conflict for the preservation of the Union, incurring an immense debt, exceeding two thousand millions, and many of their citizens engaged in the struggle looked forward hopefully and confidently to this source of relief for the burdened treasury. They knew that the mineral belt over which the proposed railway would pass was almost entirely unexplored. They therefore retained from their grant the mineral lands, whether known or unknown, and left the discovery of the minerals to future explorations, and their disposition to future legislation."1

$ 205. The cases distinguished - The rule stare decisis not departed from. It should be observed with reference to the reasoning in the Barden case that it should not be construed as essentially overturning or overruling the two townsite cases in toto, because it must be remembered that there has never been any question, and there can be none, as to the proposition of patenting mineral lands in townsite patents. The government does not dispose of mineral lands in this way, and the law is perfectly well settled, as we shall demonstrate when we discuss that question,3 that townsite surface patents are frequently granted which actually cover mineral lands, but it is nowhere pretended at this day that the minerals thus pass to the grantees. Moreover, even if it be urged that the Barden case over

1 Barden v. Northern Pac. R. Co., 154 U. S. 288, 316-319, 38 L. ed. 992. 2 Davis v. Weibbold, 139 U. S. 507; Deffeback v. Hawk, 115 U. S. 399.

8 Post, Part X, ch. VI. See also post, next chapter.

rules the others, it is none the less right, both in principle and its reasoning, since, as was said by the learned justice who delivered that opinion, "it is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience."1 There has been a disposition in the land department throughout to restrict the meaning of the term "mineral lands" within much narrower limits when railroad grants are involved than in other cases. While some of their decisions are inharmonious upon the point, the better reasoned ones, and those correctly stating the law, agree with us.2

1

207. Patent conclusive as to title, in the absence of fraud. Except in those cases where the law authorizes the insertion in the patent of reservations of mineral and mineral lands, the issuance of the patent will vest an absolute title in the patentee, and this, whether the land be mineral or not, the rule being that the department can make reservations only as authorized by law, and that where there is no reservation in the patent it conveys the entire estate; so it is settled by a long line of authority that issuance of the patent by the proper officers in a case authorized by law, in the absence of fraud or concealment, conveys the title in accordance with its terms, and fixes the character of the land as mineral or non-mineral, and it is not open to inquiry thereafter upon either point. So, it necessarily follows, that even though lands may be otherwise reserved, yet, when patented, the reservation ceases, and no matter what the facts may be, they are presumed to have been conclusively established according to the recitals of the patent; the reason of this rule is apparent, and is that there must

1 Barden v. Northern Pac. Ry. Co., Kelly, 12 L. D. 1; Shepherd v. Bird, 154 U. S. 288-319. 17 L. D. 82.

2 W. H. Hooper, 8 C. L. O. 120; H. C. Rolfe, 2 id. 66; Conlin v.

3 Johnson v. Towsley, 13 Wall. 83. See post, Part X, ch. V, art. A.

be some point of time when questions of fact shall be settled, and the character of the land for all time determined; and for the interest of all parties concerned, there can be no better time to determine this question than at the issuing of the patent. This observation of course, has no application to a case where the patent itself, pursuant to the law, expresses a reservation on its face. In such case, the reservation being carved out of the grant, the subject of it does not pass.

§ 208. Lieu lands- Their selection and quality.-In all the grants to railroads congress has provided that the grants shall suffer no diminution in quantity because the odd-numbered sections turn out to be lands otherwise reserved from the grant, and has authorized the selection and patenting of other agricultural unappropriated lands, lying contiguous to the grant, in lieu of those thus lost. The authority is granted in the following language: "That all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections, nearest to the line of said road may be selected as above provided." Of course the plain reading of the authorization determines that these lands also fall within the same rule as do the other lands with reference to their mineral character. To prevent fur

1 Cowell v. Lammers, 10 Sawy. 255; Davis v. Weibbold, 139 U. S. 507; Pacific Coast M. & M. Co. v. Spargo, and Same against Fick, 16 Fed. Rep. 348, 16 M. R. 75; Steel v. St. Louis S. & R. Co., 106 U. S. 447; St. Louis S. & R. Co. v. Kemp, 104 U. S. 636; Vance v. Burbank, 101 U. S. 114, 519; Northern Pac. Ry. Co. v. Cannon, 54 Fed. Rep. 252, 4 C. C. A. 303. Compare Stanley v. Mineral Union (Nev.), 63 Pac. Rep.

2 Kansas Pac. Ry. Co. v. A., T. & S. F. R. Co., 112 U. S. 414, 28 L. ed. 794; Dubuque & Pac. R. Co. v. Litchfield, 64 U. S. 66, 16 L. ed. 500; United States v. Missouri, K. & T. Ry. Co., 141 U. S. 358; United States v. Winona & St. Paul Ry. Co., 67 Fed. Rep. 948; Barney v. Winona & St. P. Ry. Co., 117 U. S. 228; Wis. Cent. Ry. Co. v. Price, 133 U. S. 496.

3 13 Stat. at L. 365.

ther trouble on this score congress has provided for the appointment of a commission to make selections of these lands and a classification thereof.1 It is expressly provided therein that no patent or other evidence of title shall issue to the railway company until after such classification, and that any patent or other evidence of title issued in violation thereof shall be void.2

CHAPTER VI.

TOWNSITE PATENTS, RESERVATIONS FROM

§ 210. The statutes reviewed reserving minerals from townsite patents 211. The view of the law upheld in the Butte City Patent Cases. 212. Review of the townsite cases - Known mines-Mining claims

-

in fact — Effect and extent of reservations — Horsky v. Moran reviewed.

213. Statutory construction by the legislature — The courts corrected

by the legislative power -The later act.

214. Reservations and not patents construed here — No title to mines passes by townsite patent.

1

§ 210. The statutes reviewed reserving minerals from townsite patents.-The statutory provisions by which reservations of minerals were made from townsite patents were enacted at two different times. The first provision was that: "No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper; or to any valid mining claim held under existing laws." This provision, standing alone, is seemingly as broad and comprehensive as are any of the reservations in the railroad grants. It is agreed by the courts on all hands that the reservations from townsite patents and from railroad grants stand more nearly on the same footing with each other than do either of them with reference to "lode-placer" reservations.2 This being so, if the supreme court of the United States had not reached different conclusions with reference to them, it would seem that the reasoning in the Barden case would be conclusive upon this point, and that in no event could it be said that the

1 Townsite Act approved March 2, 1867 (14 Stat. at L. 541), as amended June 8, 1868 (15 Stat. at L., p. 67); R. S. U. S., § 2392.

2 Horsky v. Moran, 21 Mont. 345, 53 Pac. Rep. 1064, and cases there cited.