are left to the rule applicable in cases of individuals, it could occupy only so much of the surface as was necessary in the usual and reasonable course of working;1 and this would necessarily vary in each particular instance, dependent upon the character of the ore and its mode of occurrence. Neither the government nor its licensees could condemn rights of way or surface ground for mining purposes under the law of eminent domain; for mining is not a governmental function, nor is it a public use. Besides, the right of eminent domain is a right of municipal sovereignty, to be exercised in accordance with the rules prescribed by the individual states. It is true that the act contains the saving grace which inhibits any one without the consent of the owner of the grant from working the mines "until specially author"ized thereto by act of congress, to be hereafter "passed," thus preventing a general invasion by enterprising explorers of the possession of the grant-owner, and giving congress an opportunity to readjust its legislation in this behalf, to harmonize with the established policy of the government.

We do not see why a preliminary investigation as to the character of the land embraced within a claimed grant should not have been authorized, and the mineral lands segregated, as in the case of railroad grants, homestead entries, and donations to states for educational purposes. If it is objected that a surface examination might not disclose the mineral possibilities, the answer is, that such is often the case with other classes of titles on the public domain. A discovery of mineral upon lands after they have been patented under the homestead, townsite, railroad, school, or other grants, would not defeat the patent or enable the government, or any

1MacSwinney on Mines, p. 282; Stewart on Mines, p. 33.

one else, to abridge the right of the patentee to the land granted, or sanction an intrusion upon his possession.1

We cannot see the propriety of adopting one policy with reference to by far the greater portion of the public domain, and another one, based on different theories, applicable to the remainder. While it may not be fairly within the author's privilege to speculate as to what troubles may arise, or what difficulties may be encountered in executing the act in question, we are very much inclined to believe that the proviso will be a serious annoyance to both the government and the grant-owner, without any compensating features.

At the first session of the fifty-seventh congress a bill framed for the purpose of giving effect to the proviso was introduced in the house of representatives, the first section of which is as follows:

"Be it enacted by the senate and house of representa"tives of the United States of America in congress "assembled, That hereafter all gold, silver, and quick"silver deposits, or mines, or minerals of the same, on "lands embraced within any land claim confirmed by "the decree of the court of private land claims, or as to "which a suit for confirmation shall be pending in any "court having jurisdiction thereof, are hereby declared "to be free and open to exploration and purchase, under "the mining laws of the United States, the local mining "laws and regulations, and such regulations in addition "thereto and consistent therewith as may be prescribed "by the secretary of the interior from time to time, by "citizens of the United States and those who have "declared their intention to become so."

1 Cowell v. Lammers, 10 Saw. 246, 21 Fed. 200; Colo. C. and I. Co. v. United States, 123 U. S. 307, 8. Sup. Ct. Rep. 131; Pac. Coast M. and M. Co. v. Spargo, 8 Saw. 645, 16 Fed. 348; Richards v. Dower, 81 Cal. 44, 22 Pac. 304; Cooper v. Roberts, 18 How. 173; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; McCormick v. Sutton, 97 Cal. 373, 32 Pac. 444; Smith v. Hill, 89 Cal. 122, 26 Pac. 644.

Upon reference to the committee on mines and mining, that committee requested the views of the secretary of the interior upon the measure, a customary courtesy when legislation affecting the public domain is under consideration by the national legislature. The views of Secretary Hitchcock in response to the request, formulated with the aid of the assistant attorneygeneral of the department, are herewith appended. They are to be commended for their persuasive logic.

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"After careful consideration of the subject, the department is of opinion that only mines of gold, silver, or quicksilver, or minerals of the same, known "to exist within a confirmed private land claim at the "date of its confirmation, and not the property of the grantee by the terms of the confirmed grant, or otherwise, in law or in equity, were by said act declared to "remain the property of the United States, the working of which mines, after confirmation of the grant, "and without the owner's consent, was to be provided. "for by future legislation. This construction appears "to be a reasonable one, and one which it seems to the department will effectuate the purposes of the act. "Considerations of equity and justice, as well as the "stability of titles based upon decrees of confirmation "rendered by the court of private land claims, and patents issued in pursuance thereof, require that there "shall be a time with respect to which such titles must "be considered as settled. This could not be so if the "view should obtain that all lands in claims confirmed

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by the court and patented by the government, are "nevertheless to be free and open to exploration for "gold, silver, and quicksilver deposits, or mines or "minerals of the same, under the mining laws of the "United States, as the bill in question proposes to "declare. It is not believed that such was the intention "of congress in the enactment of the above-quoted pro"vision of the act of March 3, 1891.

"This view is strengthened by the declaration in the "act that no such mine shall be worked on any con

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"firmed claim without the consent of the owner thereof, "until specially authorized by a future act of congress. "What congress had in mind evidently was the reserva"tion and future working of mines of gold, silver, or quicksilver, existing within the limits of a confirmed "claim at the time of confirmation. The act deals with gold, silver, and quicksilver mines, and minerals of "the same; that is, minerals of the mines. To properly come within the designation of mines, the existence of "the minerals referred to must have been known at "the date of the decree of confirmation.

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"It is not in terms declared that no allowance or con"firmation of any claim shall confer any right or title "to minerals of gold, silver, or quicksilver not known "to exist in the land at the time of confirmation of the "claim, and which may be discovered after confirmation "and patent. To so construe the act would tend to dis"turb and render uncertain all titles issued upon "decrees of confirmation made by the court of private "land claims. It cannot be considered that congress "contemplated a result so unreasonable and so manifestly out of harmony with all previous legislation relating to the disposal of the public lands, in the "absence of language plainly and unmistakably ex"pressive of such intention. There is nothing in the statute which requires or would warrant such a "construction.

"The future legislation contemplated by the act "relates only to the working of 'mines or minerals of "the same,'-that is, to develop claims and the miner"als therein-mines and minerals,-which had been "discovered at the time of confirmation, and not to "minerals which were then wholly unknown and which

may be found many years after the confirmation and "after the issuance of patent by the government. Legis"lation making provision for the working of all mines "of gold, silver, or quicksilver, which were known at "the date of the confirmation of any claim to exist "within its limits, and which were not conveyed to the "grantee by the terms of the grant, and to which he "has not become otherwise entitled, in law or in equity,

"would, in the judgment of the department, be appropriate legislation.

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"Many private land claims have been finally adjudi"cated and patented under the act of March 3, 1891. To hold that the titles thus granted by the government are liable to be in whole or in part subverted and "rendered nugatory by future discoveries in the patent"ed lands of valuable deposits of gold, silver, or quicksilver, as would have to be done to support the bill "under consideration, would be in direct contravention "of what has come to be regarded as settled law, sup"ported by a long line of judicial and departmental "decisions, that when a person once establishes his " right to a patent from the government for a portion "of the public domain, he thereby acquires a vested "interest in the land to which title is sought; and if "the land is not then known to contain valuable deposits "of minerals, no discoveries of minerals thereafter "made therein, either before or after the actual issuance "of patent, will in any manner affect his right to a patent for the land or his right to and exclusive owner66 ship of all such subsequently discovered minerals. It "is not believed that by the act of March 3, 1891, congress intended to make so grave a departure from long-established principles and precedents governing "the disposal of the public lands.

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"For these reasons I cannot approve the proposed "bill."

§ 128. Conclusions. From the foregoing exposition of the law, we are authorized to deduce the following conclusions:

(1) No right can be acquired under the general mining laws to any mineral lands lying within the claimed boundaries of any Mexican grant, so long as the grant remains sub judice. The only exception to this rule is the case of grants in New Mexico, Arizona, Colorado, Utah, Nevada, and Wyoming, when, since March 3, 1891, locations may be made within the exterior limits of claimed grants which are sub judice, the determination