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tions; and where the right of indemnity selection is given, lands containing coal and iron within the indemnity limits may be selected by the railroad company with the same effect as if they were agricultural in character. It follows, as a matter of course, that if the granting act is silent upon the subject of these two commodities, lands containing them do not pass, nor can they be selected as indemnity lands.

In the administration of the railroad grants there was at one time the same disposition upon the part of the land department to restrict the meaning of the term "mineral," as used in the reservation clauses of these grants, which prevailed in dealing with grants to states. What we have heretofore said with reference to this rule of construction when considering the latter class of grants applies with equal force to railroad grants.2 More recent decisions of the department have, however, given a liberal interpretation to the term "min“eral.” 3

Let us review the action of the land department in dealing with this subject as applied to railroad grants.

As early as 1875 the department held that lands more valuable for the deposits of limestone than for agriculture might be patented under the mining laws. This ruling has been followed in later cases.1

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1Rocky Mountain C. and I. Co., 1 Copp's L. 0. 1.

See, ante, §§ 137-141.

'Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233; Aldritt v. N. P. R. R. Co., Id. 349; Union Oil Co. (on review), Id. 351; Florida and Penin. R. R. Co., 26 L. D. 600; Phifer v. Heaton, 27 L. D. 57; Forsythe v. Weingart, Id. 680; Beaudette v. N. P. R. R. Co., 29 L. D. 248; Tulare Oil and M. Co. v. S. P. R. R. Co., Id. 269; Schrimpf v. N. P. R. R. Co., Id. 327; Morrill v. N. P. R. R. Co., 30 L. D. 475.

In re H. C. Rolfe, 2 Copp's L. O. 66; In re W. H. Hooper, 8 Copp's L. O. 120; In re Josiah Gentry, 9 Copp's L. O. 5; Maxwell v. Brierly, 10 Copp's L. O. 50; Conlin v. Kelly, 12 L. D. 1; Shepherd v. Bird, 17 L. D. 82; Morrill v. N. P. R. R. Co., 30 L. D. 475.

Lindley on M.-17

In the case of Elias Jacob, Commissioner Williamson made a contrary ruling; but this decision was overruled by the secretary in the Hooper case. We thus have established, by a uniform series of decisions, a departmental rule of construction, that lands valuable for deposits of lime are mineral in character, and may be entered under the mining laws.

In 1873, the department issued a circular for the guidance of surveyors-general and registers and receivers, wherein it classified borax, carbonate and nitrate of soda, sulphur, alum, and asphalt as minerals, and open to entry under the mining laws. We are not aware that this classification has ever been questioned. Secretary Hoke Smith announced the rule that in administering railroad grants the word "mineral," as used in the reservation clauses, is to be understood to apply only to the more valuable metals, such as gold, silver, cinnabar, and copper.*

His argument proceeded upon the theory that at the time of the passage of the act wherein mineral lands were reserved, either expressly or by implication, the substances in controversy (phosphates and petroleum) were not mineráls in contemplation of congress, and therefore passed to the railroad; that congress at that time only had in contemplation the more valuable metals.

The vice of the distinguished secretary's reasoning is found in his assumption that after the passage of the railroad acts, and before title vests under them, congress has no power to change its policy or enlarge

17 Copp's L. O. 83.

$8 Copp's L. O. 120.

Copp's Min. Dec., p. 316.

♦Tucker et al. v. Florida Ry. and Nav. Co., 19 L. D. 414 (subsequently overruled: Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233); Union Oil Co., 23 L. D. 222 (reversed on review: 25 L. D. 351).

the scope of its legislation with respect to mineral lands. That this view is erroneous, we think we have fully demonstrated in the preceding article on the subject of grants to states for educational purposes.

His decision was overruled by his successor, and the liberal rule now prevails.1

Secretary Smith's ruling would have enabled railroad companies in the future to obtain title under the unadministered grants to a large class of valuable deposits, such as limestone, alum, soda, asphalt, marble, borax, sulphur, etc., which, by legislative and judicial construction, are within the purview of the mining laws.

Recently the following substances have been held to be mineral within the meaning of the reservation in the railroad grants: Granite,2 asphaltum,3 marble and slate,1 limestone, phosphates generally," and sandstone."

In the instructions issued to the commissioners appointed under the act providing for the classification of mineral lands within railroad grants in Idaho and Montana, the secretary was not unmindful of the injunction contained in that act, "That all said lands shall be "classified as mineral which, by reason of valuable "mineral deposits, are open to exploration, occupation, "and purchase under the provisions of the United "States mining laws." Is this not a legislative decla

1 Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Union Oil Co. (on review), Id. 351.

Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, S. C. on appeal, 104 Fed. 425.

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Tulare Oil Co. v. S. P. R. R. Co., 29 L. D. 269.

Schrimpf v. Northern Pac. R. R. Co., Id. 327.

Morrill v. Northern Pac. R. R. Co., 30 L. D. 475.
Florida Cent. and Penin R. R. Co., 26 L. D. 600.
Beaudette v. N. P. R. R., 29 L. D. 248.

20 Land Decisions, 351. See Beaudette v. Northern Pac. R. R. Co., 29 L. D. 248; Schrimpf v. Northern Pac. R. R. Co., Id. 327; Morrill v. Northern Pac. R. R. Co., 30 L. D. 475; Northern Pac. R. R. Co. v. Soderberg, 99 Fed. 506, 104 Fed. 425.

ration that no lands which are subject to entry under those laws shall be patented to a railroad company? We think it is, although we are of the opinion that this was the law prior to the passage of this act.1

159. Test of mineral character of land applied to railroad grants. We think we are amply justified in here reiterating the doctrine applied by us to the administration of school land grants.

The question whether a given tract of land within the primary or place limits of a railroad grant is mineral, and therefore excepted out of the grant, is to be determined according to the state of the law and the facts as they exist at the time the railroad company applies for its patent. If the mineral character is then established according to the rules announced in section ninety-eight, it does not pass under the grant."

Where a mining location is made within the primary limits of a railroad grant upon lands returned as agricultural and listed under the grant, and hearing is ordered at the instigation of the mineral claimant, the railroad company is entitled to personal notice of the hearing, posting and publication not being sufficient.3

Where, however, a mineral claimant applies for a patent and proceeds with the posting and publication required by section twenty-three hundred and twenty-five of the Revised Statutes,-the proceeding being characterized as one essentially in rem,+-such posting and publication are sufficient."

1 Pacific Coast Marble Co. v. Northern Pac. R. R. Co., 25 L. D. 233; Aldritt v. Northern Pac. R. R. Co., Id. 349; Morrill v. Northern Pac. R. R. Co., 30 L. D. 475.

'Id.

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

4 See, post, § 713.

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

With respect to indemnity selections, the state of the law and the facts as they exist at the time of the selection are alone to be considered, unless the act itself provides a different time.1 If the lands sought to be selected fall within the rules announced in section ninety-eight of this treatise, they cannot be selected by the railroad company.

These rules apply to all railroad grants to the extent that they remain unadministered. As we shall hereafter see, a patent issued to such companies is conclusive evidence that the lands are non-mineral. Consequently, changed conditions arising after the issuance of patents or final approval of selections cannot affect the title.

While courts do not attempt to determine the mineral character of lands 2 falling within the limits of a railroad grant in advance of the decision of the land department upon the subject, they will protect the land from irreparable injury or destruction in a suit by a railroad company prior to such decision by the department.3

160. Classification of railroad lands under special laws in Idaho and Montana.-To facilitate the administration of the land grants to the Northern Pacific railroad, and to provide for a more expeditious method of determining the character of lands within the primary and indemnity limits of this grant in the states of Idaho and Montana, congress, on February 26, 1895, passed an act, entitled "An act to provide for the examination "and classification of certain mineral lands in the states "of Montana and Idaho." 4

This is the act referred to in section one hundred and

'Bedal v. St. Paul, M. and M. Ry. Co., 29 L. D. 254.

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Northern Pac. R. R. Co. v. Soderberg, 86 Fed. 49, S. C. 99 Fed. 506; Railroad Co. v. Hussey, 61 Fed. 231.

428 Stats. at Large, p. 683.

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