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fifty-eight of this treatise. It establishes an auxiliary board, consisting of three commissioners for each state, appointed by the president, whose duties are to make examinations in their respective districts, take testimony of witnesses, and generally to investigate the mineral or non-mineral character of the lands within the railroad limits in their respective jurisdictions.

The act makes provision for determining protests and controversies relative to the character of lands, the results of all such investigations to be reported through the customary channels to the land department. The action of this board only becomes final upon the approval of its reports by the secretary of the interior.

It is unnecessary here to detail the particulars of the act. The functions of the board are largely those of referees or "roving commissioners" under the equity practice; and in this aspect it is a mere adjunct of the land department. A mineral return by the commissioners would not prevent the commissioner of the general land office from making such disposition of the land as is proper upon a subsequent showing as to its character, but the classification should be considered as of the same effect as the returns of mineral lands made by the government surveyor.1

The act does not contemplate the classification of even sections, and the character of these sections is only considered when the mineral or non-mineral character of the odd sections cannot be otherwise satisfactorily ascertained. The secretary of the interior, shortly after the passage of the act, issued elaborate instructions, prescribing the duties of the commissioners, under which they are now acting.3

The act, however, possesses some general features of 320 Land Decisions, p. 351.

Circ. Inst., 25 L. D. 446.
Id., 26 L. D. 684.

more than passing interest. In addition to the definition of the term "mineral lands," referred to in the preceding section, it provides that in determining the character of the lands the commissioners may take into consideration certain conditions which, according to the previous rulings of the department and the courts, have not been considered as elements of controlling weight.

Thus, where mining locations have been made or patents issued for mining ground in any section of land, this shall be taken as prima facie evidence that the fortyacre subdivision within which it is located is mineral land. It is further provided that the examination and classification of lands shall be made without reference or regard to any previous examination, report, or classification; that the commissioners shall take into consideration the mineral discovered or developed on or adjacent to such land, and the geological formation of all lands to be examined and classified, or the lands adjacent thereto, and the reasonable probabilities of such land containing valuable mineral deposits because of its formation, location, or character.

These provisions seem wise and beneficent. As the railroad company has no vested right to any particular class of lands, the rules established by the act can work no legal hardship. What is lost to the company in the place limits may be compensated by selections within. the indemnity limits. Nor do we think, taking a common-sense view of the situation, that any cause of complaint could be urged by any land-grant road to which similar laws might be made applicable, even where there are no provisions for indemnity selections. Judge Sawyer 2 and Judge Hawley have both held that lands

1 Holter v. Northern Pac. R. R. Co., 30 L. D. 442.

Francœur v. Newhouse, 40 Fed. 618.

Valentine v. Valentine, 47 Fed. 597.

reasonably supposed to be mineral do not pass to the railroad companies; and the mineral character of a given tract may be reasonably inferred from geological conditions and local environment. It is to be hoped that the experiment will prove beneficial, and that like provisions may be made for the adjustment of all railroad land grants within the mineral regions.

2 161. Effect of patents issued to railroad companies. The supreme court of California has held in several cases that in an action at law a patent issued to a railroad company can be attacked by showing that the lands in controversy are mineral lands.1

2

These decisions were based upon the construction of patents which contained the reservation of "all mineral "lands, should any be found to exist." Judge Sawyer, in the case of Cowell v. Lammers, has conclusively shown that this exception is void, not being authorized by law. However, in later cases the supreme court of California has recognized the rule that when a law of congress provides for the disposal of certain public lands, upon the ascertainment of certain facts, the officers of the land department have jurisdiction to inquire into and determine those facts, and the patent issued thereon is a conclusive declaration that the facts have been found in favor of the patentee, and that this rule applies to the determination of the particular character of the land which is the subject of the patent.

The federal courts, whose views, in the end, on a

1 McLaughlin v. Powell, 50 Cal. 64, 19 Am. Rep. 647; Chicago Q. M. Co. v. Oliver, 75 Cal. 194, 7 Am. St. Rep. 143, 16 Pac. 780; Hunt v. Steese, 75 Cal. 620, 17 Pac. 920.

10 Saw. 246, 21 Fed. 200.

'Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, 20 Pac. 550; Irvine v. Tarbatt, 105 Cal. 237, 38 Pac. 896; Dreyfus v. Badger, 108 Cal. 65, 41 Pac. 279; Klauber v. Higgins, 117 Cal. 451, 49 Pac. 466.

question like this must prevail,1 have from the beginning unhesitatingly announced the rule that the land department has jurisdiction to determine the character of lands, and its determination, culminating in the issuance of a patent, is conclusive. Such patent is not open to collateral attack.2

If mineral lands have been patented under railroad or homestead laws, and were known to be mineral prior to final entry and certification, such patents may be vacated by the United States.3

In a suit by the United States to vacate a patent issued under a railroad grant on the ground that the land was mineral, the burden rests on the complainant to over

1 Gale v. Best, 78 Cal. 240, 12 Am. St. Rep. 44, 20 Pac. 550.

Barden v. N. P. R. R. Co., 154 U. S. 288, 14 Sup. Ct. Rep. 1030; French v. Fyan, 93 U. S. 169; Johnston v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389; Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. Rep. 74; Parley's Park S. M. Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. Rep. 511; United States v. Winona and St. P. R. R. Co., 67 Fed. 948; Carter v. Thompson, 65 Fed. 329; Scott v. Lockey Inv. Co., 60 Fed. 34; United States v. Mackintosh, 85 Fed. 333, 336; Northern Pac. R. R. Co. v. Soderberg, 86 Fed. 49; Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185; Rood v. Wallace, 109 Iowa, 5, 79 N. W. 449; United States v. Budd, 144 U. S. 167, 12 Sup. Ct. Rep. 575; Peabody G. M. Co. v. Gold Hill M. Co., 111 Fed. 817. See Garrard v. Silver Peak Mines, 82 Fed. 578, 94 Fed. 983; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 112 Fed. 4; Potter v. Randolph, 126 Cal. 458, 58 Pac. 905. See, also, King v. Thomas, 6 Mont. 409, 12 Pac. 865; Manning v. San Jacinto Tin Co., 7 Saw. 419, 9 Fed. 726; Butte and B. M. Co. v. Sloane, 16 Mont. 97, 40 Pac. 217; Ah Yew v. Choate, 24 Cal. 562 (state patent); Poire v. Wells, 6 Colo. 406; Meyerdorf v. Frohner, 3 Mont. 282.

W. P. R. R. Co. v. United States, 108 U. S. 510, 2 Sup. Ct. Rep. 802; McLaughlin v. United States, 107 U. S. 528, 2 Sup. Ct. Rep. 802; Mullan v. United States, 118 U. S. 271, 6 Sup. Ct. Rep. 1041; United States v. Mullan, 7 Saw. 466, 10 Fed. 785; United States v. Reed, 12 Saw. 99, 28 Fed. 482; United States v. Culver, 52 Fed. 81; Finn v. Hoyt, Id. 83; United States v. Central Pac. R. R. Co., 84 Fed. 218, 93 Fed. 871; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 39; Gold Hill Q. M. Co. v. Ish, 5 Or. 104.

come the presumption in favor of the patent by satisfactory proof, not only that the land was known mineral land at the time the patent was issued, but that it is chiefly valuable for mineral purposes. Evidence that gold placer mining had formerly been carried on in a stream on the tract, but that it had been abandoned as worked out prior to the date of the patent, and neither at that time nor since had there been any mines on the land producing mineral and capable of being worked at a profit, is insufficient, as is also evidence of the mineral character of adjoining land.1

Authorities might be multiplied indefinitely. Sufficient space has been devoted to this subject at this juncture. We shall have occasion to recur to it again when considering the force and effect of federal patents generally, in a later portion of the work.

? 162. Conclusions.-We are authorized to deduce the following general conclusions from the foregoing exposition of the law:

(1) That lands embraced within the primary or place limits of a railroad grant, whose mineral character is known or established at any time prior to the issuance of a patent, are not patentable to the railroad company, and are excepted out of the grant.

(2) Lands mineral in character within the indemnity limits of any railroad grant, where indemnity selections are authorized by the act, can not be selected in lieu of lands lost to the company within the place limits.

(3) Whether a given tract within either the primary or indemnity limits is mineral or not must be determined according to the state of the law and facts as they exist at the time patent is applied for or application to select is made, unless the act under which the grant is claimed

'United States v. Central Pac. R. R. Co., 93 Fed. 871.

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