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"commissioner of the general land office when he "certified to the selection, or upon the secretary of the "interior when he approved the same, to the same "extent as in cases of applications made by individuals or corporations for patent to agricultural or mineral "lands, where specific proofs are required, and the "land department is clothed with the power to hear "and determine all questions as to the character of the land, the right of the applicant to apply for and "receive the same, and the sufficiency of the proofs to "show a compliance with the law entitling the appli"cant to a patent. All of these acts upon the part of "the officers were subject to the reservations specified "in the act itself."

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This doctrine was upheld by the circuit court of appeals. The land department adopted this construction of the law and issued its patent to the Silver Peak Mines for the Manser mining claim, and this without any independent investigation on its part as to the antecedent history or character of the land, although it had frequently held that after it has approved and certified lands to states the title to the lands so certified passes to the state as completely as though patent had issued, and precludes the exercise of further departmental jurisdiction over the land until such certification is vacated by judicial proceedings.3

In the Garrard case a court of equity would undoubtedly have erected a trust in favor of the mineral claimant upon the state title, or the government might have. successfully prosecuted an action to vacate the listing. But if the case is to be accepted as authority to the effect that after approval of the selection and certification to the state, which is in effect a conveyance of the title, the

194 Fed. 983.

Manser Lode Claim, 27 L. D. 326.

'State of California v. Boddy, 9 L. D. 636; Hendy v. Compton, Id. 106; Tanner v. O'Neill, 14 L. D. 317.

land department still retains jurisdiction to review its action, investigate the character of the land, and, if found to be mineral, vacate the listing and issue a mineral patent, the reconciliation of the doctrine so announced with the long line of decisions enunciated by the supreme court of the United States heretofore cited is not without embarrassment. The suggestion found in the court's opinion above quoted, that the duty imposed upon the commissioner of the general land office to investigate the character of land is to be performed with a greater degree of diligence and circumspection in the case of individuals and corporations than in the case of state selections, does not, in our judgment, strengthen the ultimate conclusion.

Be this as it may, until the selection is finally approved by the officers of the government charged with this duty, and the land is certified or listed to the state, the state has no title which it can convey to the purchaser.1

Without such approval, neither the state nor its grantee can question any further disposition which the United States may make of the land embraced in the attempted selection.2

144. Effect of surveyor-general's return as to character of land within sixteenth and thirty-sixth sections, or lands sought to be selected in lieu thereof, or under floating grants.-We have already had occasion to comment on the general unreliability of that class of returns of surveyors-general3 from

Churchill v. Anderson, 53 Cal. 212; Buhne v. Chism, 48 Cal. 467; Wisconsin Cent. R. R. Co. v. Price County, 133 U. S. 496, 10 Sup. Ct. Rep. 341; Allen v. Pedro, 136 Cal. 1, 68 Pac. 99; Baker v. Jamison, 54 Minn. 17, 55 N. W. 750.

Roberts v. Gebhart, 104 Cal. 67, 37 Pac. 782.

See, ante, § 106. Also, Instructions, 31 L. D. 212.

which an inference or presumption is said to arise that the lands are non-mineral in character. Where the lands, however, are returned as mineral, it suggests direct knowledge brought to the attention of the surveyor of the notorious mineral character of the land. And in such cases, perhaps, more weight should be given to the returns. Be that as it may, where a given sixteenth or thirty-sixth section is returned as mineral by the surveyor, and his field-notes and plat are filed in the general land office, this is a sufficient determination that the lands are mineral to authorize the state to select indemnity lands in lieu thereof.1

But if the lands are returned as agricultural lands, or if the character of the lands is not sufficiently shown by the survey, the state should not be permitted to select indemnity lands until it has been determined that the lands which it claims to have lost by reason of their mineral character were in fact of that character at the date of the approval of the survey.2

Of course, the state having selected lieu lands in such a case, it would be estopped from ever after claiming that the surveyor-general's return upon which it based its right to select lieu land was false. The selection when made would operate as a waiver of its right to the land relinquished. A like estoppel should rest upon the government. It should not be permitted to assert that the lands relinquished are not mineral in character, as it is only by reason of this character that the government retains dominion and control over the lands.

Where, however, no application is made to select land in lieu of sixteenth and thirty-sixth sections, returned

'Johnson v. Morris, 72 Fed. 890; In re State of California, 23 L. D. 423. But see Instructions, 31 L. D. 212.

'Bond v. State of California, 31 L. D. 34. See Instructions, Id. 212. In re State of California, 28 L. D. 57.

as mineral, the state has a right to be heard upon the question of the character of the land, in whatever tribunal the question is raised.1 If a mining location is made upon such a section, and application is made for a mineral patent, the state is a necessary party to the investigation touching the character of the land and the time when it became known as such.2

It cannot be deprived of this right by any proceeding to which it is not a party, or of which it has had no legal notice.

In the case of applications for mineral patents for lands within railroad land-grant limits, the publication and posting of the patent application has been held to operate as such notice.3

The publication, however, of a notice of a hearing ordered by the land department to determine the character of the land is not sufficient. The railroad company, through its officers, should be personally served.* A similar rule should undoubtedly be applied where the claims of the mineral locator conflict with asserted rights under grants to states which rights are still in any sense subject to administration, or over which the land department retains jurisdiction sufficient to enable it to pass upon the character of the land.

As sixteenth and thirty-sixth sections pass to the state in the absence of legal impediment, by the survey ex propria vigore, or by the admission of the state after survey, there is no preliminary adjudication, actual or presumed, by the land department as to the character of the land. There is no antecedent judgment, as there is in pre-emption or homestead cases, which is final and

1 Richter v. State of Utah, 27 L. D. 95.

Boulder & Buffalo M. Co., 7 L. D. 54; Fleetwood Lode, 12 L. D. 604.

3 Northern Pac. R. R. v. Cannon, 54 Fed. 252.

McCloud v. Central Pac. R. R. Co., 29 L. D. 27.

conclusive upon collateral attack. The return of the surveyor-general is in no sense such an adjudication. It follows that the question may be raised at any time by any one in privity with the government of the United States. The holder of a valid subsisting mining location is in such privity.

We reserve for discussion in the next section the effect of a state patent as evidence of the character of the land. With reference to the state selecting lieu lands, or lands in satisfaction of its floating grants, it is not precluded from applying for lands returned as mineral. It has a right to contest this return, and establish upon hearings ordered for that purpose the non-mineral character of the land, the same as any other applicant to purchase or make private entry of public lands.

But before such selection can be preliminarily accepted, the state must "prove the mineral off," upon notice given of a hearing for that purpose.1

144a. Conclusiveness of state patents as to character of land. It does not necessarily follow that the state must, under its laws regulating the sale of its lands acquired from the general government, by its conveyance vest in the grantee the same title and right acquired by it. As the paramount proprietor of its granted lands, it may pass such laws and prescribe such rules and regulations governing the administration of its grants as the legislature may deem expedient, and the state's vendee takes title subject to such laws.2

Land which at the time of survey, in the case of sixteenth and thirty-sixth sections, or at the time of listing and certification, in the case of lieu or floating grants,

'Regulations of the Department, pars. 100-105, appendix; State of California, 22 L. D. 294; S. C. (on review), Id. 402; Commissioner's Letter, Copp's Min. Dec., p. 40; Richter v. State of Utah, 27 L. D. 95. Stanley v. Mineral Union (Nev.), 63 Pac. 59, 60.