west quarter of section 29 of township 35 north of range 7 west, M. D. M., must be held to be not included in the lands conveyed by the patent to the Central Pacific Railroad Company because of the reservation contained in the granting clause of the patent, and judgment in this action should be in favor of the plaintiff, as prayed for in this complaint." The affirmance of this appeal might be rested upon the legal principles announced in this opinion of the trial judge and further consideration of the matter made unnecessary, if it were not that some points and authorities cited by appellant here are to be noticed, as well as some decisions, other than those referred to by the trial judge, to be cited. * * * Certain California cases are cited by appellant under which they claim that the patent to the railroad company is conclusive against the attack of respondent. These are particularly: Gale v. Best, 78 Cal. 235, 20 Pac. 550, 12 Am. St. Rep. 44; Saunders v. La Purisima, etc., Co., 125 Cal. 159, 57 Pac. 656; Paterson v. Ogden, 141 Cal. 43, 74 Pac. 443, 99 Am. St. Rep. 31; and Jameson v. James, 155 Cal. 275, 100 Pac. 700. But an examination of these cases shows that the attack on the patent was made by junior claimants. As to such claimants, it is clear, as pointed out in those authorities, that the patent to the land as agricultural land is conclusive. But the plaintiff here is not a junior claimant. He had made a valid mining location and initiated his title to his mining claim in the quarter section in question nearly six months before the issuance of the patent to the railroad company, and, as the law is that mineral deposits whose existence are known when the patent is issued do not pass under it, the patent was ineffectual to transfer any title to the appellants as to the mining claim of the respondent. [6,7] As to the right of the respondent to have his title quieted as against defendants, we have no doubt. Respondent was in possession of his mining claim under a valid location made prior to the issuance of the patent under which appellants claim, and was, therefore in privity with the United States. He is the equitable owner of the mining claim, and while the government holds the legal title it holds it in trust for him, to issue a patent therefor, if he should elect to obtain one upon his complying with the provisions of the law entitling him to such issuance. Under such circumstances, while respondent's title to the mining claim is only an equitable one, and though the legal title is in the government, he is entitled to have such equitable title quieted against appellants who, though they acquired no title whatever to the mining claim of respondent under the patent to the railroad, are nevertheless asserting title to it against respondent. The order appealed from is affirmed." 'See Loney v. Scott, 57 Ore. 378, 112 Pac. 172, where it was held that the plaintiffs who had attempted to locate placer claims on land not subject Section 3.-State School Land Grants. HERMOCILLA v. HUBBELL ET AL. 1891. SUPREME COURT OF CALIFORNIA. 89 Cal. 5, 26 Pac. 611. BELCHER, C.-This action is ejectment to recover possession of the east half of the east half of the south-west quarter, and the west half of the west half of the south-east quarter, of a certain sixteenth section of land situate in Placer county. Other portions of the section are described in the complaint, but, as no contest was made as to them, they need not be referred to further. The defendants Hubbell, Shea, and California Quartz Mining Company alone answered. They denied all the averments of the complaint, and alleged that the portions of the section above described were in 1850, and ever since had been, and then were, mineral lands of the United States, having known valuable mineral deposits therein, consisting of placers containing gold in paying quantities, and quartz ledges or deposits of gold-bearing rock in place, carrying gold and other precious metals in paying quantities; and that during all the times mentioned the said placers and quartz ledges had been, from time to time, in the actual possession of citizens of the United States, who were working and exploring the same for the gold and precious metals they contained. They further alleged that in the year 1880 two quartz mining claims, which are particularly described, were located on the demanded premises by citizens of the United States, and in conformity to the laws thereof and the local rules, regulations, and customs of the mining district,-one by the grantor of defendant Shea, and the other by the grantors of the defendant California Quartz Mining Company, and that the locators and the said defendants, as their successors in interest, had ever since held, possessed, and worked their respective claims as mining claims. The case was tried by the court without a jury, and judgment was entered that the defendants above named were the owners and entitled to the possession of their respective mining claims as described, and as to them that the plaintiff take nothing; and that the plaintiff was the owner and entitled to the possession of all the balance of the land sued for as against all of the defendants. From this judgment, so far as it was against her, and from an order denying a new trial, the plaintiff appeals. The plaintiff claimed title under a patent from the state, issued to to mining location because withdrawn for "irrigation works" under the act of June 17, 1902, ch. 1093, 32 Stat. 388, and who had remained in possession and worked the claims after the land was restored to public entry were entitled to an injunction against an action of ejectment brought by a grantee of a railway company which got its patent to the land as lieu land after the restoration of the land to the public domain and while the plaintiffs were in possession. one Banvard, her grantor, in 1870; and the first question is, was title to this land vested in the state at the time of the issuance of the patent? If it was, then the plaintiff was entitled to recover, and if not, we think the proper judgment was entered. Whatever title the state had was acquired under the act of congress of March 3, 1853, "to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes.' 10 St. U. S. 244. By this act (section 6) it is declared that sections 16 and 36 "shall be, and hereby are, granted to the state for the purposes of public schools in each township." In Higgins v. Houghton, 25 Cal. 253, it was held by the supreme court of this state that mineral lands were not excepted from the operation of the grant of the sixteenth and thirty-sixth sections, made to the state by the act of March 3, 1853, and that as fast as the townships were surveyed the state became the owner of these sections absolutely. And see Wedekind v. Craig, 56 Cal. 642. The rule declared by this court, as above stated, has not been approved by the supreme court of the United States. On the contrary, it was held by that court in Mining Co. v. Consolidated Min. Co., 102 U. S. 167, that the grant of the sixteenth and thirty-sixth sections of public land to the state of California by the act of March 3, 1853, was not intended to cover mineral lands, but that such lands were, by the settled policy of the general government, excluded from all grants. That decision is controlling, and must be followed here. The question then remains, were the disputed premises at the time of the grant mineral lands,—that is, known to be valuable for minerals? Deffeback v. Hawke, 115 U. S. 404, 6 Sup. Ct. Rep. 95. Upon this question the court below found as follows: "That during all the year 1850, and at the time of the acquisition of the said lands by the government of the United States, and continuously ever since, and on the 10th day of December, 1870, when the said patent was issued to the said E. M. Banvard, and at the time of the survey of the said lands and the return thereof by the said United States, the said east half of the east half of the south-west quarter, and the said west half of the west half of the south-east quarter, of said section sixteen were, and have been, and now are, known public mineral lands of the United States, having therein known valuable mineral deposits, consisting of gravel or placer deposits, and of quartz rock in place, bearing gold in paying quantities, and ever since the 26th day of July, 1866, have been free and open to exploration and purchase, and to occupation and purchase as mineral lands by citizens of the United States, and such as have declared their intention to become such citizens." It is claimed by counsel for appellant that this finding as to the mineral character of the land was not justified by the evidence, and hence that the judgment should be reversed. We do not think this position can be sustained. It is true the evidence was somewhat conflicting, but, taken as a whole, it was amply sufficient, in our opin ion, to justify the finding. It is further claimed that the placer mines had been worked out, and the quartz mines abandoned as unprofitable, before 1870, and that there was no evidence showing or tending to show a holding or working of any part of the land at the time of the issuance of the patent in 1870. Conceding this to be so, still it cannot aid the appellant. The grant of the sixteenth and thirty-sixth sections was a grant in præsenti, and the only question is, was the land in question known to be mineral in character at the time the grant was made? If it was, the title did not pass to the state, but the state took a right to other land in lieu thereof, and not a right to this land when its minerals should be exhausted. It is also claimed that the defendants were not in a position to attack the patent. But, as we have seen, the state had no title to the mineral land, and passed none to its patentee. The title still remained in the general government, and under its laws the land was open to occupation and purchase as mineral land. The defendants were in possession of their claims under locations which were made in accordance with the law and the local rules and customs. They were therefore in privity with the United States, and had a clear right to contest the patent and assert their rights. At the trial the defendants introduced evidence showing the work done on their claims after their location in 1880. This evidence was objected to by the plaintiff as irrelevant and immaterial, and the objections were overruled, and exceptions taken. The evidence was introduced to show that the claims were still valuable, and to overcome the plaintiff's theory that they were of no value. This, we think, they had a right to do. But, if the rulings were erroneous, the plaintiff was in no way prejudiced by them, as she had no title. It follows that the judgment and order appealed from should be affirmed. PER CURIAM-For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. Section 4.-Mexican Land Grants. LOCKHART v. JOHNSON et al. 1901. SUPREME COURT OF THE UNITED STATES. IN error to the Supreme Court of the Territory of New Mexico to review a decision affirming a judgment for defendants in an action of ejectment for mining property. Modified and affirmed. 6 See same case below, 9 N. M. 344, 54 Pac. 336. On state school land grants, see Costigan, Mining Law, 64–71. Mr. Justice PECKHAM.-The first question to be determined in this case is one which arises out of the facts set forth in the stipulation between the parties, and that is, Did the lands which the plaintiff claims to recover belong at the time of the location in 1893 to the United States within the meaning of § 2319, Revised Statutes, which provides that "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States," etc.? At the time of the location the record shows the parties believed the land was government land, and not within the limits of any Mexican grant. The stipulation shows, however, that the lands were in fact within the limits of the private land claim known as the Canada de Cochiti grant; that the grant was never confirmed by Congress upon the report of the surveyor general, and that two different sets of claimants under the grant had filed their petitions in the court of private land claims at Santa Fe, one on the 2d and the other on the 3d day of March, 1893; that there was a decree of confirmation rendered by the court on September 29, 1894, and in that decree of confirmation the lands were not included within the boundaries of the grant as confirmed by that decree. An appeal was taken therefrom by all the parties to the Supreme Court of the United States, where it was pending at the time the stipulation was entered into, the appeal being dated March 11, 1895. It therefore appears that at the time of the discovery and location. of the lode in July, 1893, the Cochiti grant was before the court of private land claims for adjudication, and the question is whether by reason of that fact these lands were reserved from entry and were not subject to the mineral laws of the United States at that time. It will be noticed that before the trial of this case the validity and extent of the Cochiti grant had been decided by the court of private land claims, and this land was thereby excluded from the limits of that grant. We know by our own records that the decree of the court of private land claims was affirmed in this court, in substance, in Whitney v. United States, decided in May, 1897, 167 U. S. 529, 42 L. ed. 263, 17 Sup. Ct. Rep. 857. The contention on the part of the plaintiff in error is that while the Cochiti claim was before the court of private land claims, and thereafter until its final determination by this court, no land within its claimed limits could be entered upon under the mining laws of the United States, and if any such entry were in fact made it was illegal and void, and gave no rights under the mining laws to the parties so entering, and consequently plaintiff's possession was not subject to forfeiture under those laws. In other words, that while the claim was sub judice all lands within its 7 The statement of facts and parts of the opinion are omitted. |