66 to determine who is the owner of land. The depart"ment is the medium through which parties may "acquire the title of the United States. . . . It deter"mines the existence or non-existence of alleged facts, "to enable it to select the person who is entitled to pur"chase. . . . The court very properly, then, delayed the “trial until the question as to the character of the land was determined by the land department, which alone "had the power to decide that controversy. The court "had jurisdiction of the action, but could not try that particular controversy, which was involved in the action. Being a suit to quiet title, and not to recover possession, there was no special reason for antici"pating the action of the department."

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The court then intimates that if the suit had been one to recover possession, it would have had power to try such questions so far as necessary to determine the right of possession, but that its decision would not trench upon or conclude the land department.1

It was further held that the decision of the land department as to the character of the land was properly admitted as evidence, and was conclusive upon the question.

The issuance of a patent is not necessary before courts can take jurisdiction. When the proceeding is terminated in the land department by action which is a finality, that of itself is sufficient to enable the courts to act.2

1Upon this point see Marquez v. Frisbie, 101 U. S. 473, 475; Humbird v. Avery, 110 Fed. 465, 472. See, also, Manser Lode, 27 L. D. 326. 'Cope v. Braden, (Okl.), 67 Pac. 474.

CHAPTER III.

STATUS OF LAND AS TO TITLE AND POSSESSION.

ARTICLE I. INTRODUCTORY.

II. MEXICAN GRANTS.

III. GRANTS TO STATES FOR EDUCATIONAL AND INTERNAL IM.

PROVEMENT PURPOSES.

IV. RAILROAD GRANTS.

V. TOWNSITES.

VI. INDIAN RESERVATIONS.

VII. MILITARY RESERVATIONS.

VIII. NATIONAL PARK AND FOREST RESERVATIONS.

IX. HOMESTEAD AND OTHER AGRICULTURAL CLAIMS.

X. OCCUPANCY WITHOUT COLOR OF TITLE.

ARTICLE I. INTRODUCTORY.

112. Only public lands subject to appropriation under the mining laws.

112. Only public lands subject to appropriation under the mining laws. -The mineral character of a given tract of land having been ascertained as a present fact, according to the rules enunciated in a preceding chapter, it becomes necessary to determine the status of the land as to title and possession before any legal right of appropriation under the mining laws can be asserted and maintained by the mineral claimant. Only public mineral lands can be entered under the mining

laws. Land to which any claim or right of others has legally attached does not fall within the definition of "public land."1

While under the system in vogue on the continent of Europe, in Mexico, and the South American republics, mining privileges may be acquired in lands of private proprietors under certain restrictions and governmental regulations, no such right exists in any of the states and territories of the United States wherein the federal mining laws are operative. Lands held in private ownership in such states and territories cannot be invaded.2 The land sought to be entered upon as mineral land must be free, open, public land, and not legally reserved, appropriated, dedicated to any other use or purpose, or otherwise legally disposed of. As to whether a given tract of land sought to be entered as mineral is free and open to acquisition under the mining laws, is sometimes a difficult question to solve. To enable us to intelligently deal with this subject, it will be necessary to examine the various methods by which the government parts with its title to its lands, its obligation under treaties of cession, the nature and extent of grants previously made, and the reservations of certain parts of its territory made for public purposes, pursuant to special laws.

1

1 See, ante, § 80; post, § 322; Newhall v. Sanger, 92 U. S. 761; Bardon v. N. P. R. R. Co., 145 U. S. 535, 538, 12 Sup. Ct. Rep. 856; Mann v. Tacoma Land Co., 153 U. S. 273, 284, 14 Sup. Ct. Rep. 820; Teller v. United States, 113 Fed. 273; Cameron v. United States, 148 U. S. 301, 13 Sup. Ct. Rep. 595; United States v. Tygh Valley Land Co., 76 Fed. 693; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. Rep. 548; In re Logan, 29 L. D. 395; Nome Transp. Co., Id. 447; Thallman v. Thomas, 111 Fed. 279; Garrard v. Silver Peak Mines, 82 Fed. 578.

'Biddle Boggs v. Merced M. Co., 14 Cal. 376.

116. Obligation of the United States to protect rights accrued prior to the cession.

§ 117. Adjustment of claims under Mexican grants in California.

§ 118. Adjustment of claims under Mexican grants in other states and territories.

§ 119. Claims to mines asserted under the Mexican min

ing ordinances.

third classes.

§ 125. Grants confirmed under the California act.

§ 126. Grants confirmed by direct action of congress.

§ 127. Grants which have been finally confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona.

§ 120. Status of grants consid- § 128. Conclusions.

113. Introductory.-For a period commencing with the cession by Mexico under the treaty of Guadalupe Hidalgo, and ending with the dissolution of the court of private land claims, originally established by act of congress, March 3, 1891, to investigate and determine the validity and extent of Mexican grants in Arizona, New Mexico, Colorado, Wyoming, Utah, and Nevada,1 the relationship of Mexican grants to the great body of the public domain has been the subject of congressional legislation and judicial inquiry, presenting many interesting and complicated ques

1 The existence of this court has been prolonged from time to time, June 30, 1903, being the date now fixed for its dissolution. Stats. 1st Sess. 57th Cong., p. 170.

tions. At the present time, with the possible exception of isolated grants which were not required to be presented for confirmation to the court above named,— i. e. grants which were perfect prior to the treaty,—it is presumed that all rights and claims of every nature to lands arising out of Mexican grants have been finally adjudicated, their limits ascertained, and the line of demarcation between grant and public lands clearly defined. The subject, if deserving of a place in a discussion of the American law of mines, is of historical interest only. Nevertheless, the recent acquisition by the United States of the Philippines, Porto Rico, and Hawaii, accompanied by treaty stipulations regarding the recognition and protection of pre-existing rights and equities in lands previously granted by the ceding nations, renders it expedient to give the subject of Mexican grants, their mode of administration, their relationship to the great body of the public lands, and the operation of the mining laws in respect thereto, some prominence.

With a comprehensive mining code recently enacted by congress governing the acquisition of possessory rights in the public mineral lands of the Philippine islands, many questions analagous to those which have arisen in the continental area of the public domain, respecting grants from foreign nations, will undoubtedly be made the subject of judicial inquiry. These considerations we think justify the reatment of the subject within reasonable limitations.

114. Ownership of mines under Mexican law. Under the laws in force in Mexico at the date of the treaty of Guadalupe Hidalgo, mines, whether in public or private property, belonged to the supreme government.1

Castillero v. United States, 2 Black, 17.