lands for the use of the United States was fixed; and if there had been no special clauses of reservation in the acts, the courts would have been forced to the conclusion that such lands were reserved by implication from the donations to railroads, following the doctrine announced with reference to grants of sixteenth and thirty-sixth sections to the states for school purposes.1

This doctrine of implied reservation has been applied by the land department to a grant of lands in Florida. to aid in the construction of a railroad.2

However, in framing the later railroad acts, congress deemed it prudent to leave no room for dispute or discussion on this score, and inserted in each one of the acts clauses of reservation. The act of July 1, 1862,3 contained the proviso "that all mineral lands shall be excepted from the operation of this act." The amendatory act of July 2, 1864, provided that "any lands granted by this act or the act to which this is an "amendment.. . shall not include. .. . . mineral "lands, . . . or any lands returned and denominated

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as mineral lands." It also provided "that the term "'mineral land,' wherever the same occurs in this act "and the act to which this is an amendment, shall not "be construed to include coal and iron land." The act of July 2, 1864, incorporating the Northern Pacific railroad company, contained reservations and limitations of similar import.*

At the second session of the same congress (thirtyeighth) which passed the act amendatory of the original Pacific railroad act and the Northern Pacific act, a joint resolution was adopted by the senate and house of representatives which provided,—

1 Ivanhoe M. Co. v. Keystone M. Co., 102 U. S. 167. See, ante, § 136.

2 Florida Cent. and Peninsular R. R. Co., 26 L. D. 600.

312 Stats. at Large, p. 492, § 3.

13 Stats. at Large, p. 367, § 3.

"That no act passed at the first session of the thirty"eighth congress granting lands to states or corpora"tions to aid in the construction of roads or for other 66 purposes . . . shall be so construed as to embrace "mineral lands, which in all cases shall be and are "reserved exclusively to the United States, unless other"wise specially provided in the act making the grant.

The mining act of July 26, 1866, followed.

991

The circuit court of appeals for the ninth circuit has held that these reservations in railroad grants were made in contemplation of future legislation as well as the existing laws.2

In the light of this legislation, it is difficult to understand how any serious controversy could arise over the administration of these land grants in the mineral regions. But such conflicts did arise, generally between purchasers of the railroad title and mineral claimants, and the battle was fiercely waged in all the tribunals, both state and federal. These controversies involved a discussion as to the character of the grants and the time when they took effect as to particular tracts. We have observed that there are found in this class of legislation grants of three different kinds: (1) the grant of the right of way and for side-tracks, stations, and kindred purposes; (2) grants of particular sections; (3) indemnity lands. We will consider each class with reference to the mineral reservations found in the several acts.

153. Grants of right of way. -The grants of rights of way found in the various railroad acts contain no reservations or exceptions. They are present, absolute grants, subject to no conditions, except those necessarily implied, such as that the road shall be constructed and

113 Stats. at Large, p. 567.

N. P. R. R. Co. v. Sanders, 49 Fed. 129.

used for the purposes designated. They are in effect grants of the fee.1 All persons acquiring any portion of the public lands, after the passage of such acts, take the same subject to the right of way conferred by them for the proposed road.2

The grants are floats until the line of the road is "definitely fixed" by filing the map of definite location. When so filed, and approved by the secretary of the interior, title vests to the lands within the limits of the right of way, as fixed by the act, as of the date of the passage of the act.

The line of the road may also be "definitely fixed" by the actual construction of the road without having previously filed the map or profile, and such actual construction precludes location of mining claims within the right of way limits."

The reservation of "mineral lands" found in these acts does not apply to the lands embraced within the right of way limits. This right of way extends to and covers all public lands, whether mineral or not.

If at the time the right of way attaches mineral lands over which the road is to pass are unoccupied, a subse

1 Missouri, Kansas and Texas Ry. v. Roberts, 152 U. S. 114, 14 Sup. Ct. Rep. 496; New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. Rep. 128; Melder v. White, 28 L. D. 412.

*St. Joseph and Denver City R. R. Co. v. Baldwin, 103 U. S. 426; Montana Cent. R. R. Co., 25 L. D. 250.

3 St. Joseph and Denver City R. R. Co. v. Baldwin, 103 U. S. 426; Smith v. N. P. R. R. Co., 58 Fed. 513; W. P. R. R. Co. v. Tevis, 41 Cal. 489; Northern Pac. R. R. Co. v. Murray, 87 Fed. 648; United States v. Oregon and Cal. R. R. Co., 176 U. S. 28, 20 Sup. Ct. Rep. 261.

Jamestown and Northern Ry. Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. Rep. 568.

5 Pennsylvania M. and Imp. Co. v. Everett and M. C. Ry. Co. (Wash.), 69 Pac. 628.

Doran v. C. P. R. R. Co., 24 Cal. 246; Wilkinson v. N. P. R. R. Co., 5 Mont. 538, 548, 6 Pac. 349; Pennsylvania M. and Imp. Co. v. Everett and M. C. Ry. Co. (Wash.), 69 Pac. 628.

quent location thereof, followed by a patent to the locators, is inferior to the right of way to the company, and must yield to the superior legal title, without resort to a court of equity to set the patent aside.

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As was said by the supreme court of Montana,

"The mineral lands excluded from the operation of this act are evidently not those covered by the right of way. . . . And it would be destructive of the rights "of the railroad company if mining claims could at any time be located and worked upon the track and "land covered by the right of way. . . . The operations "of mining and the business of railroads cannot be "conducted at the same time upon the same ground; "and a reservation of such a character would beget a conflict of rights and a confusion of interests not in contemplation of intelligent legislative action."1

The limits of the grant of the right of way once fixed by the filing and approval of the map of definite location, or by the actual construction of the road in the absence of such filing and approval, cannot thereafter be changed to the detriment of any other party.2

It will be remembered that these decisions are under acts passed prior to the mining act of July 26, 1866. We do not concede that a right of way granted to a railroad company subsequent to the passage of that act would take precedence over a prior valid subsisting mining location. As we understand the law, since the passage of the mining acts the location of a valid mining claim operates to withdraw the land embraced within it from the public domain. It is a grant from the government. A railroad corporation claiming a right of way under a subsequent grant by congress could not cross the located mining claim (provided the same is

1 Wilkinson v. N. P. R. R. Co., 5 Mont. 538, 548, 6 Pac. 349.

2

* Smith v. N. P. R. R. Co., 58 Fed. 513, and cases cited; Northern Pac. B. R. Co. v. Murray, 87 Fed. 648.

upon mineral land) without condemning the land and paying the miner compensation.1 In this respect, as we will hereafter endeavor to show, mining claims differ from inchoate homestead and pre-emption claims.2 As to lands for depot, side-track, and other kindred purposes, no controversies are likely to arise. For the most part, these adjuncts are necessarily within the right of way limits, if in fact the laws do not contemplate they should be. If other lands necessary to be used for these collateral purposes may be selected outside of the right of way limits, then their selection would necessarily be under the supervision of the land department, and rights thereto would not attach until final approval of the selection.3

154. Grants of particular sections, as construed by the courts.-The grants of the alternate sections are said to be of lands "in place," and the limits within which they are granted are called "primary" or "place" limits, contradistinguished from "indemnity" limits in cases of grants which provide for indemnity or lieu selections, as well as for lands "in place."

Grants of particular sections or of lands "in place" do not acquire precision until the lands are surveyed and the line of the road is definitely fixed. Until such time the grant is said to be a float. Such grants are, however, grants in præsenti. They attach to particular tracts as soon after the filing of the map of definite location of the road as these tracts become identified by survey; and when so identified, title vests in the company, in the absence of legal impediments, by relation

Montana Cent. Ry. Co., 25 L. D. 250.

St. Paul M. and M. Co. v. Maloney, 24 L. D. 460; Dakota Cent. R. R. Co. v. Downey, 8 L. D. 115; Santa Fe Pacific Ry., 29 L. D. 36.

3 See Union Pac. Ry., 25 L. D. 540; Santa Fe Pacific R. R. Co., 27 L. D., 322; 29 L. D. 36; Opinion attorney-general, 28 L. D. 130.