later in date of passage but earlier in position in the revision of the statutes, provision was made for patenting of all land claims confirmed to any person in any state or territory. But by another section, earlier in date it is true, but later in position in the revision, and clearer in statement, it is provided that: "Where lands have been and may hereafter be granted by any law of congress to any one of the several states and territories, and where such law does not convey the fee-simple title of the lands, or require patents to be issued therefor, the list of such lands which have been or may hereafter be certified by the commissioner of the general land office, under the seal of his office, either as originals or copies of the originals or records, shall be regarded as conveying the fee-simple of all the lands embraced in such lists that are of the character contemplated by such act of congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such acts of congress, and are not intended to be granted thereby, the lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim or interest shall be conveyed thereby." And it has been repeatedly held by federal courts, and by the supreme court of the United States, that such selection is equivalent to a patent.2 3 1 § 225. How the selection may be set aside. In the preceding section enough appeared to demonstrate that the selections of land by the state and approved by the commissioner are only final under the circumstances that a patent 1 Act of August 3, 1854, 10 Stat. at L. 346; R. S. U. S., § 2449. 2 Buena Vista Petroleum Co. v. Tulere Oil & M. Co., 67 Fed. Rep. 226, citing Frasher v. O'Conner, 115 U. S. 102; Mower v. Fletcher, 116 U. S. 380; McCreery v. Askell, 119 U. S. 327; Wright v. Roseberry, 121 U. S. 488; Chandler v. Calumet & Hecla M. Co., 149 U. S. 79. See also Barden 3 See ante, § 221. See also United States v. Mullan, 10 Fed. Rep. 785; affirmed, s. c. sub nom. Mullan v. United States, 118 U. S. 271. is final, and since they operate as a patent and are, to all intents and purposes, the patent to the state of the particular lands described, it must necessarily follow that the selection may be set aside for the same reasons that a patent can be set aside, the consideration of which question is postponed to a later branch of this work.1 § 226. Mineral character of the land - To what time applies - What questions involved. In all such inquiries, and in all inquiries relative to the selection of the land, the principal question involved is the character of the land as being mineral or non-mineral, that is, so far as this work is concerned in its investigation, and it becomes important to determine at what point of time this particular investigation and decision are applied. It would seem that the cogent statement in a preceding section as to railroad grants applies with equal force here, and that the time of selection and approval by the commissioner is the one to which all inquiries must be addressed. Manifestly, the general description of mineral land, and what is included by the term as we have attempted to reproduce them in the preceding pages of this work, must be the decisive criterion in all such investigations. Obviously, too, as in all cases, the return of the surveyor-general through his deputies is prima facie evidence of the character of the land, but it is only prima facie, and is open to rebuttal and dispute at any time prior to the confirmation by the commissioner of the selections. made by the state. It is also open to dispute for actual fraud or misrepresentation at any time within the period of limitations, at the suit of the government. There are certain cases, however, respecting the return of the surveyor, wherein the return imports on its face investigation, and would therefore seem to be entitled to greater weight. For example, if certain land within an agricultural area was returned as mineral, or within a mineral area was returned as non-mineral, this would seem to indicate investiga 1 See post, Part X, ch. V, art. C. tion, and therefore a stronger claim for belief; and where specific sections are granted to the state, as, for example, sixteen and thirty-six, and they are returned by the surveyor as mineral, this is a sufficient authority upon which to make a selection of lieu or indemnity lands,' and the change of position affected thereby works an estoppel upon both parties.2 ARTICLE C. Effect of State Renunciation. § 228. Estoppel to state by renunciation. § 228. Estoppel to state by renunciation.-Pursuing the thought enunciated in a preceding section, it must be quite apparent that where the state, by legislative declaration, surrenders all claim to mineral lands and authorizes locations to be made upon lands otherwise falling to the state, such declaration is conclusive; and even though the state officers may afterwards assume to grant a state patent to any such land, if there is a valid mining claim upon it, or if it is mineral land, the grantee of the state acquires no title thereby. As was said by the supreme court of Nevada, speaking of the statute of that state: "The passage of said act was a recognition by the legislature of this state of the validity of the claim made by the government of the United States to the mineral lands. Whatever might, therefore, be the construction of the language of the enabling act, as interpreted from the act itself, we think it controlled by the subsequent legislation we have referred to, and that the title of the state to the land conveyed to appellant's grantors was, at the time of the survey thereof, subject to the terms 1 Johnson v. Morris, 72 Fed. Rep. 890; John W. Moore, 13 L. D. 64; State of California, 23 L. D. 423. See also Sutton v. Minnesota, 7 L. D. 762. 2 Bishop of Nesqually v. Gibbon, 158 U. S. 155; Blight v. Rochester, 20 U. S. (7 Wheat.) 535. 3 See ante, § 226. and conditions imposed by the act of congress of July 4, 1866, and as the portion of said land in controversy in this action was then 'rich in minerals,' and occupied and claimed by respondent's grantors for mining purposes, the grantors of appellant acquired no title thereto by virtue of the patent issued by this state."1 So under another grant to the state under a statute later than any we have heretofore mentioned, where mineral lands are expressly excepted from the operation of the grant, and where in the same statute the state was authorized to dispose of such land under such terms as it should see fit for the purpose therein provided, and where the state, by its statute enacted in pursuance of such authority, and in providing for the disposal of said grant, enacted in direct terms that nothing in the act contained should be so construed as to prevent persons entering upon any of the land described for prospecting or mining purposes, and where the officers of the state patented certain lands to S. upon which M. had valid and subsisting mining claims, the supreme court of Nevada held that S. acquired no title by his patent and that the possession and claim of M. was valid notwithstanding such patent. This matter is further considered in a previous part of this work, and we merely mention it in its aspect as a reservation at this time and without any thought that the statute in its letter can be enforced. $229. Review of reservations. It will thus be seen that in all grants to the state composing the public mineralland states of the Union in aid of education and for other state purposes, including the regular school sections sixteen and thirty-six, congress has in many instances excepted by express provisions from the grant all mineral lands, known 1 Heydenfeldt v. Daney G. & S. M. Co., 10 Nev, 290. 2 Act of June 16, 1880, 21 Stat. at L. 287. 3 Act of March 5, 1887, Compiled Laws of Nevada of 1900, §§ 325, 327. 4 Stanley v. Mineral Union, Limited, 63 Pac. Rep. 59. 5 Ante, §§ 162, 163. mines and salines; and that in all other cases where the pol icy has not been expressed in the statute, it has nevertheless been recognized and enforced by the courts to the end that those grants do not convey mineral lands. In general, it may be said, the rule which governs the acquisition of mineral lands applies with equal force to these grants; and decis ions under the one, as a general rule, bear with equal force upon the questions involved in the other. Whence it fol lows that upon these sections, at any time prior to the confirmation by the commissioner to the state, valid mining locations may be made and possession taken thereunder. |