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p. 602.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 466.

Florida Central & Peninsular R. Co., In re, 26 L. D. 600,

Eagle Salt Works, In re, 5 C. L. O. 4.

Spong, In re, 5 L. D. 193.

Merrill v. Dixon, 15 Nev. 401, p. 404.

Mineral lands do not pass to the railroad by virtue of this grant, but the timber upon mineral land within 10 miles of the center line of the road or branches is granted

to the railroad company, excepting so much as is necessary to support the improvements of mine owners.

Central Pac. R. Co. v. Mammoth Blue Gravel Co., 1 C. L. O. 134.

Lands containing valuable deposits of salt are mineral lands, excluded from the operation of this grant.

Eagle Salt Works, In re, 5 C. L. O. 4.

The exception of mineral lands from the operation of this act found in this section has no reference to the grant of the right of way provided for in section 2.

Doran v. Central Pac. R. Co., 24 Cal. 246, p. 254.

A discovery of mineral at any time prior to the issue of a patent in land in a railroad grant will defeat the grant, and a purchaser from the company takes only in the event that the land passes under the grant.

Barnstetter v. Central Pac. R. Co., 21 L. D. 464, p. 466.

This and the amendatory act (13 Stat. 356) expressly provide that no lands shall be granted to the railroad company which are mineral in character, except such as should contain coal or iron.

United States v. Central Pac. R. Co., 93 Fed. 871, p. 872..

3. MINING LOCATIONS WITHIN LIMITS.

It has been the uniform practice of the department to permit and maintain mineral locations within the geographic limits of railroad grants based upon discoveries made at any time before patent or certification, where patent is not required.

Central Pac. R. Co. v. Valentine, 11 L. D. 238, p. 243.

Adams v. Reed, 11 Utah 480, p. 495.

Mineral lands situated within the limits of a railroad grant are subject to location up to the time of the issuance of patent to the railroad company.

Barden v.

Northern Pac. R. Co., 154 U. S. 288.

Van Ness v. Rooney, 160 Cal. 131, p. 136.

4. MINERAL CHARACTER OF LAND.

a. EXTENT AND VALUE.

In excluding mineral lands from the grant to the Pacific Railroad Co., Congress only intended to reserve land valuable for mining purposes.

Davis v. Weibbold, 139 U. S. 507, p. 520.

Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348.

Cowell v. Lammers, 21 Fed. 200.

Merrill v. Dixon, 15 Nev. 401.

The words "mineral lands" used in this statute must be construed in a practical sense, and with reference to the present known or obviously apparent condition of the lands granted.

Francoeur v. Newhouse, 40 Fed. 618, p. 621.

Francoeur v. Newhouse, 43 Fed. 236, p. 238.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 595.

See Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348.
Cowell v. Lammers, 21 Fed. 200.

Mineral land must be such that the deposit is of substantial value and such as can be secured with profit.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 464.
United States v. Iron Silver Min. Co., 128 U. S. 673.

The exception of mineral lands from a grant to a railroad company does not exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction. Berry v. Central Pac. R. Co., 15 L. D. 463, p. 464. See Davis v. Weibbold, 139 U. S. 507.

The fact that parts of the land claimed under this grant contained particles of gold or veins of gold-bearing quartz rock would not necessarily impress it with the character of mineral land, but it must be shown that the land contains metal in quantities sufficient to render it available and valuable for mining purposes.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 465.
Alford v. Barnum, 45 Cal. 482.

The discovery of the mineral character of land at any time prior to the issuance of patent, or certification where patent is not required, will exclude such lands from this grant, and it is not necessary that known mines should exist at the time of the grant in order to exclude mineral lands.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 466.
See Central Pac. R. Co. v. Valentine, 11 L. D. 238.

To constitute the exemption contemplated by this act there should be upon the land in controversy ascertained coal deposits of such extent and value as to make the land more valuable to work as a coal mine under existing conditions than for merely agricultural purposes, and the surface indications of the existence of veins of coal need not constitute a known mine within the meaning of the act, but the question must be determined according to the facts in existence at the time of the sale.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 465.
Colorado Coal & Iron Co. v. United States, 123 U. S. 307.

b. KNOWN MINERAL CHARACTER-MEANING.

The term "mineral lands," as used in this act, means lands known to be mineral at the time the grant took effect, or which there were satisfactory reasons to believe were such at such time.

Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348.

Cowell v. Lammers, 21 Fed. 200, p. 206.

Francoeur v. Newhouse, 43 Fed. 236, p. 238.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 602.

Francoeur v. Newhouse, 40 Fed. 618, p. 621.

Valentine v. Valentine, 47 Fed. 597, p. 598.

Northern Pac. R. Co. v. Walker, 47 Fed. 681, p. 684.

Smith v. Hill, 89 Cal. 122, p. 126.

See Deffeback v. Hawke, 115 U. S. 392, p. 404.

Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 326.

By the exception of mineral lands from the grant to the Central Pacific Railroad Co., Congress meant not only lands mineral in fact, but lands known to be mineral, or such as are apparently mineral and generally recognized as such.

Francoeur v. Newhouse, 40 Fed. 618, p. 621.
Francoeur v. Newhouse, 43 Fed. 236, p. 240.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 595.
See Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348.
Cowell v. Lammers, 21 Fed. 200.

Under these grants lands only were reserved as mineral lands which were known to be such at the time the grant attached and when the line of the road became definitely fixed.

Francoeur v. Newhouse, 43 Fed. 236.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 604.

C. HEARING TO DETERMINE.-PRACTICE.

Where lands claimed by the company as nonmineral were returned by the surveyor general as mineral and the evidence is insufficient to show its nonmineral character, the land office may order a hearing to be had before the local land officers, after due notice, to ascertain the true character of the lands.

Central Pac. R. Co., In re, 13 L. D. 603, p. 606.

At a hearing the claimant and witnesses must be thoroughly examined with regard to the character of the land, whether it has been thoroughly prospected, or whether or not there exists any lode or vein of quartz or other rock in place bearing mineral which has been claimed, located, or worked, and whether such work has been abandoned, to what extent mining is carried on, and the submission of the usual nonmineral affidavit is not sufficient to enable the department to determine as to the real character of the land.

Central Pac. R. Co., In re, 5 C. L. O. 2.

A contestant who alleges the mineral character of land that is prima facie agricultural must show affirmatively the existence of mineral in quantities sufficient to make the land more valuable for mining than for agricultural purposes.

Berry v. Central Pac. R. Co., 15 L. D. 463, p. 464.

See Tinkham v. McCaffrey, 13 L. D. 517.

Proceedings had in a case arising upon a protest by one party should not bar a further investigation upon an application by another person.

Zadig v. Central Pac. R. Co., 20 L. D. 26, p. 27.

The fact that lands conveyed to the Central Pacific Railroad Co. had been surveyed at a time when mineral lands were not authorized to be surveyed and the plats filed without designating the lands as mineral is prima facie evidence that they were not mineral in character and included in the congressional grant and patentable as such. Cowell v. Lammers, 21 Fed. 200, p. 205.

d. DETERMINATION-EFFECT TIME OF MAKING.

There must be some point of time in law when the character of public land as to its being mineral or otherwise must be finally determined and the best point for such determination is at the time of issuing the patent.

Cowell v. Lammers, 21 Fed. 200, p. 206.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 606.

The Land Department has jurisdiction until patent or certification to the railroad company to determine whether any of the lands within the lateral limits of the grant had been at the time the line of the road was definitely fixed, sold, reserved, or otherwise disposed of, or were for any reason excepted from the grant, and hence has jurisdiction to determine whether the lands are mineral and for that reason excepted from the grant.

Central Pac. R. Co. v. Valentine, 11 L. D. 238, p. 243.

Searle Placer, In re, 11 L. D. 441, p. 442.

Bullock v. Central Pac. R. Co., 11 L. D. 590.

If the lands are discovered to be mineral, or if prior to patent or certification, where patent is not required, this fact is brought to the attention of the Land Department the discovery proves the lands to have been mineral at the date mentioned, and this discovery serves to bring the lands within the excepting clause of the grant, and as no date is fixed in the grant in which the mineral character of the lands must be known in order to bring them within the exception, hence, if they are in fact mineral they are within the exception whether their mineral character is known at the time of definite location or approval of survey or not.

Central Pac. R. Co. v. Valentine, 11 L. D. 238, p. 243.

See Burke v. Southern Pac. R. Co. 234 U. S. 669.

The Land Department retains jurisdiction to determine the character of the land, whether claimed under this grant or the mining laws, until patent issues.

North Star Min. Co. v. Central Pac. R. Co., 12 L. D. 608.

See Searle Placer, In re, 11 L. D. 441.

A finding by the department upon an ex parte proceeding that certain land is agricultural in character does not prevent the department from ordering a hearing upon the application of a mineral claimant for land returned as mineral.

North Star Min. Co. v. Central Pac. R. Co., 12 L. D. 608, p. 609.

The effect of a decision in a previous proceeding as to the nonmineral character of lands within a railroad grant returned as mineral is very different from an adjudication arising from the assertion of claim under the settlement laws as against the return of the surveyor general, and in the latter case the adjudication being that the land is nonmineral will estop subsequent inquiry as to the character of the land as against such a claim in the absence of a charge of fraud in the first proceedings.

Barnstetter v. Central Pac. R. Co., 21 L. D. 464, p. 466.

A judgment that a specific tract included in a railroad grant is in fact agricultural will not preclude a subsequent inquiry on the protest of a mineral claimant prior to the issue of a patent.

Barnstetter v. Central Pac. R. Co., 21 L. D. 464, p. 466.
Oregon & California R. Co. v. Puckett, 39 L. D. 169, p. 171.

Under this grant any time before exploration for minerals and the issuance of patents the Government can, upon the discovery of minerals, not only refuse patent for lands containing minerals but disposes of them to other than the grantee, as such grant expressly excepted all mineral land whether there was knowledge of the existence of mineral deposits or not, and if minerals were discovered at any time before patent no title passes.

Adams v. Reed, 11 Utah 480, pp. 491, 494.

See St. Paul & Pac. R. Co. v. Northern Pac. R. Co., 139 U. S. 1.

Deseret Salt Co. v. Tarpey, 142 U. S. 241.

Ankeny v. Clark, 148 U. S. 345.

Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 332.

e. LANDS RETURNED AS MINERAL-BURDEN OF PROOF.

Where lands have been returned by the surveyor general as mineral, the burden of proof is upon the company to show that such tracts claimed by it are nonmineral. Central Pac. R. Co., In re, 13 L. D. 603, p. 606.

5. NONMINERAL LANDS PASS UNDER GRANT.

A patent regularly issued by the United States to the railroad company, without fraud or mistake on the part of the land officers or the company, was a determination by the proper tribunal that the lands covered by the patent were not mineral at the

date of the issuance of the patent under the proviso of this act, as the statutory exception of mineral lands apply only to lands known to contain valuable minerals prior to the issuance of the patent.

Spong, In re, 5 L. D. 193, p. 194.

See Deffeback v. Hawke, 115 U. S. 392, p. 401.

United States v. San Pedro, etc., Co., 4 N. Mex. 225, p. 294.

An odd-numbered section within the primary limits of this railroad grant, returned by the surveyor general, as of a class subject to the operation of the grant, passes to the railroad company under the grant.

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

Where local officers have found that lands included within this grant are nonmineral lands they pass to the company by virtue of the grant.

Central Pac. R. Co., In re, 8 L. D. 30.

The land in controversy was excepted from the operation of this grant by reason of a preemption filing and settlement made thereon by a qualified settler at the date the right of the company attached to its grant.

Austin v. Luey, 21 L. D. 507.

See Central Pac. R. Co. v. Luey, 120 Lands & Railroads Records, 223.

6. LIST OF LANDS SELECTED

-NOTICE-BURDEN OF PROOF.

When the railroad company presents a list of lands for selection with the proper nonmineral affidavit, 30 days are given by publication, in which any person may show that any tract included in the selection is mineral; but the burden is on the party so alleging, and a hearing may be ordered at the expense of the mineral affiant to determine the mineral character of any such tract.

Central Pac. R. Co., In re, 8 C. L. O. 6.

Where irregularity of the proceedings attending the filing of the list of lands is shown, and the fact that contests have been initiated affecting the character of a large number of the tracts listed, and where recent investigations indicate the character of many other tracts as mineral, the entire list should be rejected, reserving to the railroad company to select such of the lands in the list as may not be shown to be mineral in character.

Central Pac. R. Co., In re, 13 C. L. O. 269.

See Buttz v. Northern Pac. R. Co., 119 U. S. 55.

The failure of the railroad company to list lands determined by local officers to be nonmineral will not defeat the effect of proceedings instituted to determine that question.

Central Pac. R. Co., In re, 8 L. D. 30.

Central Pac. R. Co., In re, 13 L. D. 603.

7. NOTICE PUBLICATION AND POSTING.

The publication and posting of notice of a hearing on an application by a mineral claimant of a part of an odd-numbered section, within the limits of this grant, is not sufficient notice to the company.

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

8. RIGHT OF WAY OVER MINERAL LANDS.

The right of way granted to the railroad company by this act includes a right of way over mineral lands as well as over other public lands.

Doran v. Central Pac. R. Co., 24 Cal. 246, p. 253.

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