enunciate the doctrine that, even if valid, the patent did not convey the minerals, and granted an injunction.

If the conclusion of the court was correct, and it undoubtedly was, that a proper survey made under the grant would exclude the mines, it was quite evident that the United States had a right to prevent the claimant from wasting the substance of its property by extracting and removing the metal-bearing ores, and an injunction was very properly sought, evidently upon this theory. It was quite unnecessary, in order to support the judgment awarding the injunction, to hold that the minerals did not pass by the patent. Therefore, all that the court said with reference to minerals not passing by the patent, which they had declared to be void, and to have passed nothing, was obiter, and wholly unnecessary.

The reasoning of the court on this branch of the case rests upon the assumption that as the claimant under the grant could not have obtained from the Mexican government the right to the minerals, therefore he could not demand them from the United States. But this is not the question at issue. The question is, What did the patent, assuming it to have been valid, convey?

In speaking of the California cases of Moore v. Smaw and Fremont v. Flower, heretofore cited, the court says that a careful study of these cases will prove that there were circumstances in the grant confirmation indicating an intent not disclosed in the Cañon del Agua case. A thorough knowledge of the Mariposa grant, its history, and the various judicial controversies arising out of it between the mineral claimants and the grantees under the Mexican government, enables us to assert that there are no differences in essential characteristics between the two grants. Neither asserted title under the mining ordinances. One was for colonization purposes, and the

other for pastoral. The patent in one case was issued on a confirmation made by special act of congress, and in the other on a confirmation made by tribunals especially created by congress for that purpose.

The Cañon del Agua case was appealed to the supreme court of the United States, where the judgment of the supreme court of New Mexico was affirmed; but the question as to whether the patent, if valid, carried the right to the mines was neither discussed nor decided. With all due deference to the supreme court of New Mexico, we think we are justified in the conclusion that its decision in the Cañon del Agua case does not militate against the doctrine of the California cases, nor weaken the force of the line of decisions on the subject of patents to confirmed Mexican grants reviewed in the preceding paragraphs.

The decision in Fremont v. Flower was written by Judge Field. It has always stood unquestioned. As was said by Dr. Raymond in a recent monograph,—

"That a United States patent for land passes to the patentee (in the absence of explicit reservations au"thorized by law) all the interest of the United States, "whatever it may be, in everything connected with the

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soil, or forming any portion of its bed, or fixed to its surface,-in short, everything embraced within the "term 'land,'-was declared long ago in the cases aris"ing out of the Mexican land grants in California. "(See Fremont v. Flower, 17 Cal. 199, 79 Am. Dec. 123, " and other cases.) The very acute and sound decisions "of the supreme court of California in these cases (the "chief credit for which is due to Stephen J. Field, now "on the bench of the United States supreme court) may be said to have placed upon indestructible foun"dations the public land system of the United States, "the corner-stone of which is the completeness and in"vulnerability of the title of the patentee. It is worthy

1146 U. S. 120, 13 Sup. Ct. Rep. 94.

Lindley on M.-13

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"of notice, that in these cases the land in question had "been granted by the Mexican government, with reser"vation of the precious metals, the deposits of which "that government has always claimed to own, and the "ownership of which therefore passed, under treaty, unimpaired by the agricultural grants, to the United "States. Nevertheless, it was held that, in confirming "the Mexican grants and issuing its patents for the "territory, the United States actually conveyed to the patentees rights which they had never obtained from "Mexico, on the broad principle that the unqualified "grant of a patent for 'land' gives all. In other words, though the United States might have reserved the "mineral right, it could only have done so in explicit "terms, failing which, all its interests passed with its "patent. The wisdom of this timely decision is univer"sally admitted. Unquestionably it saved us from an "intolerable chaos and confusion."1

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Before leaving this subject, it may be well to invite attention to another class of grants made by congress, in satisfaction of rights asserted, having their origin under the Mexican rule. In several instances, in recognition of equities, congress has authorized claimants to select certain lands in lieu of those originally claimed. This authorization is generally accompanied with a restrictive clause prohibiting the selection of mineral lands. Under these conditions, the land department administers the grant, and necessarily in doing so passes upon the character of the land,2 as of the date of selection. The duty devolves upon the claimant to establish the non-mineral character of the lands selected.*

3

"The Force of the United States Mineral Land Patent," Mineral Industry, vol. iv, p. 781.

2

* Or, as in some cases, the duty of determining the character of the land is lodged with the surveyor-general, who acts under the supervisory control of the secretary of the interior. Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. Rep. 632.

Baca Float No. 3, 29 L. D. 44, 52.

• Id., 13 L. D. 624.

Should any lands be included within the selection which are determined to be mineral in character, as that term is defined and understood by the land department and the courts, a segregation would be required as to such lands, and patent would issue for the remainder.

Such patent when issued would be conclusive that the land was non-mineral, and it could not be thereafter collaterally assailed.1

127. Grants which have been finally confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona.What is the true intent and meaning of the proviso contained in the act of March 3, 18917

"No allowance or confirmation of any claim shall "confer any right or title to any gold or silver or quicksilver mines, or minerals of the same, unless the "grant claimed effected the donation or sale of such "mines or minerals to the grantee, or unless the grantee "has become otherwise entitled thereto in law or "equity; but all such mines and minerals shall remain "the property of the United States, with the right of "working the same, which fact shall be stated in all 66 patents issued under this act. But no such mines shall "be worked on any property confirmed by this act with"out the consent of the owner of such property, until specially authorized thereto by an act of congress "hereafter passed."

The inquiry presents some difficulty. Its proper solution involves the consideration of a number of elements.

1Carter v. Thompson, 65 Fed. 329; Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. Rep. 74; Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 387; Cowell v. Lammers, 10 Saw. 247, 21 Fed. 200; Manning v. San Jacinto Tin Co., 7 Saw. 419, 9 Fed. 726; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Butte & B. M. Co. v. Sloan, 16 Mont. 97, 40 Pac. 217; Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, 20 Pac. 550; Klauber v. Higgins, 117 Cal. 451, 49 Pac. 466. As to conclusiveness of patent as to character of land, see, post, § 779.

That the individual proprietor of the soil may grant a tract of land, reserving the mines, opened or unopened, or the minerals or any specific mineral which may be found therein, whether known to exist or otherwise, is elementary.1

The government of the United States in this respect is clothed with the same privileges as individual proprietors. If the reservation is effectual for any purpose other than to safeguard and protect equitable rights in mines which at the time the grant was confirmed had been discovered and were being worked by parties other than the grant claimants, the legislation is so opposed to the antecedent policy of the government, so inconsistent with all its legislation during the last half-century at least, and so thoroughly inconsistent with the land system which prevails in other portions of the public land states and territories, that we hardly know how to deal with it. These provisions of the law looking to the reservation of the minerals of gold, silver, and quicksilver fairly bristle with legal interrogation-marks.

What are mines of gold and silver?

In the great case of mines (the Queen v. the Earl of Northumberland), it was held that mines of the baser metals, such as copper and lead, which contained gold or silver, were royal mines, and were reserved to the crown; and it required acts of parliament in the reign of William and Mary to change this rule.

To what extent may the government utilize this privilege, and enjoy the reserved estate? Certainly it can not extend the operation of the general mining laws over the patented grants. The act does not sanction the carving out of any defined quantity of surface area to be used in connection with mining operations. If we

See, ante, $ 9, and cases cited.