66 as to those which were essentially public land states.1 This grant, commonly called "the agricultural college grant," was of thirty thousand acres for each senator and representative to which the state was entitled under the apportionment of 1860.2 In the public land states the grant was to be satisfied by selection of public lands within their respective boundaries. To the states wherein there was no public land, scrip was issued, commonly known as "agricultural college scrip." This scrip could be located anywhere on the unreserved and unappropriated public domain in any state, and could be used in the payment of pre-emption or commuted homestead entries. It was sold to speculators and individuals, who subsequently utilized it by locating it on lands subject to private entry. Congress also made other donations of a similar character, but we have here given a sufficient outline of grants to states to enable us to discuss their operation and effect with reference to mineral lands on the public domain. 135. Conflicts between mineral claimants and purchasers from the states. In administering grants of such extensive character, it is quite natural that conflicts should arise between the miner and the purchaser of state lands, particularly in the mineral regions of the west. These controversies found their way into the courts and the land department, and, as a result, certain principles of law have been announced which may be best presented by first considering the character of the lands which could pass by the grant, and at what time the respective grants take effect and become operative as to particular tracts. 'July 2, 1862, 12 Stats. at Large, p. 503. 136. Mineral lands exempted from the operation of grants to the states.-Some of the grants to the states in terms reserved mineral lands from their operation. This was the case with the agricultural college grant, which contained the reservation "that no mineral lands "shall be selected or purchased under the provisions "of this act." And the grant of seventy-two sections to the state of California for seminary purposes1 contained a similar clause. Kindred exceptions were inserted in all the more recent grants; but in some of the earlier ones, notably those donating sixteenth and thirtysixth sections, and the five-hundred-thousand-acre grant, the law was silent as to mineral lands. But, as we have already seen, the uniform policy of the government prior to the enactment of the general mining laws was to reserve mineral lands from sale, pre-emption, and all classes of grants. Of course, since the passage of the mining laws, title to mineral lands can be obtained only under these laws. In California, the supreme court of that state early announced the doctrine in reference to the grant of sixteenth and thirty-sixth sections, that, as there was no statement in the act of any condition, exception, reservation, or limitation, mineral lands were not withdrawn from the operation of the act, but passed to the state.3 But this case was subsequently overruled.* The supreme court of Nevada, in construing a similar grant to that state, held that mineral lands within sections sixteen or thirty-six did not pass; but the decision was based upon an estoppel upon the part of the state by reason of the passage by congress of an act concern 2 110 Stats. at Large, p. 244. See, ante, § 47, and cases there cited. Higgins v. Houghton, 25 Cal. 252. See, also, Wedekind v. Craig, 56 Cal. 642. Hermocilla v. Hubbell, 89 Cal. 8, 26 Pac. 611. ing certain lands granted to the state, which act provided that in all cases lands valuable for mines of gold, silver, quicksilver, or copper should be reserved from sale.1 The legislature of the state accepted the grants subject to this clause.2 And the court very properly held that by reason of this acceptance the state was estopped from asserting title to mineral lands found within the sixteenth and thirty-sixth sections.3 The land department, in recent years at least, by a uniform line of decisions, has held that mineral lands did not pass to the state under the school grants.* The supreme court of the United States had this question under consideration in reference to the grant of sixteenth and thirty-sixth sections to the state of Michigan, in Cooper v. Roberts," where it was held that mineral lands passed by the grant, even as against a license from the government to search for and extract lead and other ores. The grant in question became operative at a period prior to the discovery of gold in California, and at a time when the policy of leasing lead mines by the government was in force." But at a later period the question was again brought before the supreme court of the United States in the case of the Ivanhoe M. Co. v. Keystone M. Co.,' and the 114 Stats. at Large, p. 85, § 5. Nev. Stats. (1867), p. 57; Comp. Laws Nevada, vol. ii, §§ 3835, 3836, 3837. 'Heydenfeldt v. Daney G. and S. M. Co., 10 Nev. 290; S. C. on writ of error, 93 U. S. 634. In re Hogden et al., 1 Copp's L. O. 135; Copp's Min. Dec., p. 30; The Keystone Case, Id., 105, 109, 125; In re Le Franchi, 3 L. D. 229; Keystone Lode v. State of Nevada, 15 L. D. 259; State of California v. Poley, 4 Copp's L. O. 18; In re Chas. Norager, 10 Copp's L. O. 54; State of Utah v. Allen, 27 L. D. 53, 55; Florida Central etc. R. R. Co., 26 L. D. 600. 18 How. 173. "See, ante, § 33. 1102 U. S. 167. Lindley on M.-14 doctrine was finally established that congress in making these grants to the states did not intend to depart from the uniform policy theretofore adopted in reserving mineral lands from sale, and that mineral lands found within a sixteenth or thirty-sixth section, known to be such at the time the grant took effect, did not pass to the state. It may be observed that in the Ivanhoe-Keystone case no mention is made of the Michigan case. The rule having been thus announced, it follows as a corollary that no lands can be selected or located in satisfaction of any of the grants to the states which at the time of the proposed selection are known to be mineral lands.1 137. Restrictions upon the definition of "mineral "lands," when considered with reference to school land grants. In a preceding chapter, we have endeavored to establish a general definition of the term "mineral "lands," as that term is used in the various mining acts of congress; and we have also attempted to formulate definite rules of statutory construction to be applied to such acts and these terms when found therein.2 Thus, we have heretofore said that the word "min"eral," as used in these various acts, should be understood in its widest signification, and that all substances which are classified as a mineral product in trade or commerce, or possess economic value for use in trade, manufacture, the sciences, or the arts, fall within the designation of the term "mineral." That this is true 1United States v. Mullan, 7 Saw. 466, 470, 10 Fed. 785, S. C. on appeal, 118 U. S. 271, 6 Sup. Ct. Rep. 1041; Garrard v. Silver Peak Mines, 82 Fed. 578, 587, S. C. on appeal, 94 Fed. 983. Tit. III, ch. i, §§ 85-96. 3 See, ante, § 96. as a general rule, we have no doubt. We are firmly convinced that it should be accepted as a universal rule in dealing with the public lands. But when we are confronted with the administration of the school land grants, railroad grants, and other grants of a like character, we find that the land department at certain periods of its history has been disposed to discriminate in some instances between those substances which are obviously mineral and those which, owing to the advancement in science and the industrial arts, become classified commercially or scientifically as mineral products. 138. Petroleum lands.-This disposition on the part of the land department to restrict the definition of the term "mineral lands" was exhibited by Secretary Smith in the case of petroleum lands. He first held that petroleum was not a mineral within the meaning of the mining laws.2 He subsequently, and in harmony with his conception of the law as thus expressed, ruled that lands containing petroleum in sufficient quantities to render them more valuable for that purpose than for any other were not mineral lands, and were subject to selection by the states in lieu of lost sixteenth and thirty-sixth sections.3 In support of his first ruling, from which the second logically followed, he cited the Pennsylvania case of Dunham v. Kirkpatrick, to the effect that a reservation of "mineral" in a deed does not include petroleum, although it is admitted petroleum is technically a mineral. 1 See Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, 104 Fed. 425; Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233; Aldritt v. Northern Pac. R. R. Co., 25 L. D. 349. Ex parte Union Oil Co., 23 L. D. 222. Chandler v. State of California, Oct. 27, 1896, (not reported). |