There is nothing in the context of the school landgrant laws where the reservation of "mineral lands" appears which restricts the meaning of the term. If a restricted meaning is to be applied, it must be by reason of the relative position of the parties or the substance of the transaction.1

In considering this relative position of the parties, and the substance of the transaction, to what point of time must we direct our attention in dealing with school land grants and rights asserted under them? To the date of the passage of the act making the grant or authorizing the selection, or the time when the state or its grantees become first entitled to assert a claim to a particular tract of land?

Fortunately, this question has been satisfactorily settled for us; so that lengthy discussion will be avoided.

Prior to the passage of the coal land act of July 1, 1864,2 the land department did not regard or treat coal lands or coal mines as mineral lands, within the meaning of the prior acts of congress. This act provided:

"That when any tracts embracing coal-beds or coal"fields constituting portions of the public domain, and "which, as mines, are excluded from the pre-emption "act of 1841, and which, under past legislation, are not "liable to ordinary entry, it shall and may be lawful "for the president to cause such tracts in suitable legal "subdivisions to be offered at public sale to the highest "bidder."

Assuming that the above ruling of the land department was correct, prior to the passage of that act coal lands might be selected under previously enacted school land-grant laws.

'Stewart on Mines, pp 10-13. See, ante, § 91.

13 Stats. at Large, p. 343.

'In re Yoakum, 1 Copp's L. O. 3.

In 1868, one Mullan applied to the state surveyorgeneral of California to purchase a half-section of land selected by the state under the act of March 3, 1853, in lieu of the corresponding half of a sixteenth section theretofore lost to the state. His application was favorably considered, and in due process of time the secretary of the interior listed the land to the state, and Mullan or his grantee received a state patent. At the time Mullan instituted the proceedings culminating in the listing and issuance of the state patent the land was notoriously coal land, and was being actually worked for its coal deposits by the Black Diamond coal company. These facts were brought to the attention of the government, and suit was instituted in its behalf to vacate the listing. The case was tried before the late Judge Sawyer, in the circuit court of the United States (ninth circuit),1 who held that whatever might have been originally the proper construction of the word "mines," as used in the pre-emption act of 1841, the act of July 1, 1864, gave a legislative construction to the term which thenceforth attached to all known "coal-beds or coal-fields" in which no interest had before become vested, and withdrew such coal lands from the operation of all other acts of congress; that thereafter known coal lands were not subject to selection by the state as lieu lands; and that the state has no indefeasible rights to select such lieu lands from any particular class of lands.

The supreme court of the United States affirmed this decision, thus summing up its views:

"At the time the selection was actually made, there"fore, it cannot be doubted that the land was mineral "land, both in law and in fact, within the meaning of "the act under which the state, and those who purchased

2

United States v. Mullan, 7 Saw. 466, 10 Fed. 785.

• Mullan v. United States, 118 U. S. 271, 6 Sup. Ct. Rep. 1041.

"from the state, undertook to acquire title, and we agree "with the circuit court in the opinion that the rights of the parties are to be determined by the law as it "stood then."

66

The enactment of the general mining laws by congress incorporated into the land system a new element, announced new principles and a new policy, in the light of which all pre-existing land-grant laws to the extent that they remain unsatisfied are to be administered. All land-grant acts passed subsequent to the enactment of the mining laws operative in any of the preciousmetal-bearing states or territories, contain the usual clauses of reservation as to mineral lands.

8141. Test of mineral character applied to school land grants.-As conclusions logically flowing from what has been heretofore said, the question as to whether a given tract of land is mineral, and its selection under school land-grant laws for that reason inhibited, or is non-mineral, and subject to selection, is one to be determined according to the state of the law as it exists at the time the right to select is asserted."

If the mineral character of such tract is established according to the rules announced in section ninetyeight, then it cannot pass under the grants to states for educational purposes.1 This rule is subject to the qualification discussed in a previous section,2 that since the act of 1892 lands containing deposits of building-stone probably vest in the state under its grants of particular sections, and possibly may be selected under its indemnity or floating grants.

It is, of course, conceded that after a right has once vested to a tract of land which, at the time it became

'If a discovery of mineral has been made on each twenty acres of a placer location, the whole location is excepted from school indemnity selection. Quigley v. State of California, 24 L. D. 507.

See, ante, § 139.

segregated from the body of the public domain and passed to states or individuals, was non-mineral, according to the state of the law and the facts then existing, no subsequent change in commercial conditions nor advancement in the industrial arts can affect those rights. But tracts still open to selection are, in turn, to be governed by the new condition of things, and controlled by such enlarged definitions as may be then applied by the current of judicial or departmental authority. This rule injures no one. It is consistent with the progressiveness of the age and the spirit of our laws.

142. When grants of the sixteenth and thirtysixth sections take effect.-Until the survey of the township and the designation of the specific sections, the right of the state rests in compact, binding, it is true, the public faith, and dependent for execution upon the political authorities. Courts of justice have no authority to mark out and define the land which shall be the subject of the grant. But when the political authorities have performed this duty, the compact has an object upon which it can attach; and if there is no legal impediment, the title then vests absolutely in the state, by virtue of the survey. The government does not certify or patent sixteenth or thirty-sixth sections to the states.3

While the grant of these sections is one in præsenti, it is, before the lands are surveyed, essentially a float, a grant of a quantity of lands equal in amount to twelve hundred and eighty acres in each township.

In re Gibson, 21 L. D. 327.

Cooper v. Roberts, 18 How. 173; Hibberd v. Slack, 84 Fed. 571, 574. See, also, Beecher v. Wetherby, 95 U. S. 517; State of Utah, 29 L. D. 418; Sherman v. Buick, 45 Cal. 656; Higgins v. Houghton, 25 Cal. 252; Finney v. Berger, 50 Cal. 248; Medley v. Robertson, 55 Cal. 397, 399. 31 L. D. 212.

and

Until the status of the lands is fixed by a survey, they are capable of identification, congress reserves absolute power over them, compensating the state for such loss as might accrue to it to the extent that legal impediments prevent the title from passing.1

Until the survey is finally approved, the state has no title which it can convey to a purchaser.2

Therefore, in determining whether or not the lands embraced within these sections are mineral lands, and exempted from the operation of the grant, the inquiry is addressed to their known character at the time of the final approval of the survey. If at the time of such approval they are known to be mineral, within the meaning of that term as heretofore defined,3 title does not pass to the state, but remains in the general government and subject to its disposal under the mining laws.5

4

'Heydenfeldt v. Daney G. M. Co., 93 U. S. 634.

Under act of February 28, 1891, (26 Stats. at Large, p. 796,) states are awarded indemnity by reason of losses accruing to them on account of mineral character of sixteenth and thirty-sixth sections. And under a recent ruling, where these sections fall within the grants to states of swamp and overflowed lands, the states may select other lands in lieu thereof. State of California, 31 L. D. 335, construing same act.

Finney v. Berger, 50 Cal. 248; Medley v. Robertson, 55 Cal. 397; State of California v. Wright, 24 L. D. 54; Niven v. State of California, 6 L. D. 439.

* See, ante, §§ 93-98. The existence of a placer location within a school section, or the pendency of an application for a placer patent at the date when the grant of school lands became effective, will not operate to except such lands from the grant to the state, if said lands were not in fact mineral in character. George M. Bourquin, 27 L. D. 289. See, also, Harkrader v. Goldstein, 31 L. D. 87.

4

Ivanhoe M. Co. v. Keystone Cons. M. Co., 102 U. S. 167; Heydenfeldt v. Daney, 93 U. S. 634; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; Pereira v. Jacks, 15 L. D. 273. But see Saunders v. La Purisima G. M. Co., 125 Cal. 159, 57 Pac. 656, and the discussion in section 144a, post, as to the conclusiveness of a state patent upon the character of the land. 5 Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; Olive Land and Dev. Co. v. Olmstead, 103 Fed. 568, 576; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20; S. C. on appeal, 112 Fed. 4.