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B. MINERAL CHARACTER OF LAND.

1. DETERMINATION

HEARING AND ADJUDICATION.

An adjudication by the Land Department that certain lands within this grant were mineral in character has the effect to except such lands from the operation of this grant and such adjudication is not impeached by anything subsequently transpiring, and a subsequent determination that the lands are in fact nonmineral does not operate to give the railroad company any title or interest in the lands.

Central Pac. R. Co. v. De Rego, 39 L. D. 288, p. 290.

A hearing and determination as to the mineral character of a tract of land under this grant will not preclude a subsequent inquiry as to the mineral character of the land on the protest of a mineral claimant at any time before patent is issued.

Oregon, etc., R. Co. v. Puckett, 39 L. D. 169, p. 171.

See Central Pac. R. Co. v. De Rego, 39 L. D. 288.

Though land was found to be mineral at a hearing authorized by law, and while the railroad company acquiesced in such finding, yet it is not shown that the company relinquished any claim it might have to the land by seeking to make indemnity selection in lieu thereof, but if the land was never in fact valuable for mineral, the department has no authority to issue patent to anyone other than the railroad company, as the company acquired an indefeasable right to a patent for all the land within the primary limits by the location and construction of its road, and when shown to be nonmineral the company will not be permitted to take indemnity and to deny its title. Oregon, etc., R. Co. v. Puckett, 39 L. D. 169, p. 171.

A judgment as to the mineral character of lands can not be based entirely upon the return of the surveyor general.

California, etc., R. Co., In re, 16 L. D. 262.

C. INDEMNITY LAND-SELECTION AND TITLE.

When the railroad was located and the map made the right of the company to the odd-numbered sections became ipso facto fixed and absolute; but with respect to the lieu lands the right was only a float and attached to no specific tracts until selection was actually made in the manner prescribed.

Ryan v. Railroad Co., 99 U. S. 382, p. 386.

A selection made by the railroad company with the approval of the Secretary of the Interior of land within the permitted indemnity limits, and a patent for the same, gives the railroad company a valid title as against a Mexican claim in litigation at the date of the act, but which was finally rejected as invalid.

Ryan v. Railroad Co., 99 U. S. 382, p. 386.
Distinguishing Newhall v. Sanger, 92 U. S. 761.

14 STAT. 292, p. 295, JULY 27, 1866.

ATLANTIC AND PACIFIC-MINERALS-COAL AND IRON NOT EXCEPTED. AN ACT Granting lands to aid in the construction of a railroad and telegraph line from Missouri and Arkansas to the Pacific coast.

Be it enacted, etc., That (here naming certain persons) and all such other persons who shall or may be associated with them, and their successors, are hereby created and erected into a body corporate and politic, in deed and in law, by the name, style, and title of the "Atlantic & Pacific Railroad Co.," and by that name shall have perpetual succession, and shall be able to sue and be sued, plead and be

impleaded, defend and be defended, in all courts of law and equity within the United States, and may make and have a common seal. * * *

SEC. 3. And be it further enacted, etc. * * * Provided further, That all mineral lands be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road, and within 20 miles thereof, may be selected as above provided: And provided further, That the word "mineral," when it occurs in this act, shall not be held to include iron or coal. * * *

SEC. 18. And be it further enacted, That the Southern Pacific Railroad, a company incorporated under the laws of the State of California, is hereby authorized to connect with the said Atlantic & Pacific Railroad, formed under this act, at such point, near the boundary line of the State of California, as they shall deem most suitable for a railroad line to San Francisco, and shall have a uniform gauge and rate of freight or fare with said road; and in consideration thereof, to aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic. & Pacific Railroad herein provided for. *

* *

A. RAILROAD GRANT-ATLANTIC & PACIFIC-SOUTHERN PACIFIC.

1. NATURE, CONSTRUCTION, AND EFFECT Of grant.

2. MINERAL LANDS EXCEPTED FROM GRANT.

3. KINDS OF MINERALS EXCEPTED.

4. OIL AS MINERAL-LANDS EXCEPTED.

5. INDEMNITY LANDS-MINERALS EXCEPTED.

6. CHARACTER OF LAND-DETERMINATION.

7. DECISIONS OF LAND DEPARTMENT CONCLUSIVE.

8. DISCOVERY OF MINERAL BEFORE PATENT-EFFECT.
9. PATENT.

a. DETERMINATION OF CHARACTER OF LAND.

b. EXTENT AND EFFECT OF EXCEPTING CLAUSE.

c. NO PRIVATE ENTRY AFTER ISSUE.

10. PURCHASER FROM RAILROAD COMPANY-TITLE.

11. TITLE OF SOUTHERN PACIFIC TO OIL LANDS-BURKE CASE.

1. NATURE, CONSTRUCTION, AND EFFECT OF GRANT.

This act, while a grant in præsenti, did not of itself identify the land and could not do so, as this could not be done until the road was constructed, nor could it be known what lands would be free from other claims at the time of its location or what lands would be mineral, and accordingly the act provided for issuing patents to the company after the construction of the road; and the patents when issued were to be in confirmation of the company's "right and title," and were to be the legally appointed evidence that the lands described therein had passed to the company under the grant.

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

This act was not a gift of land to the railroad company from the United States, but the act made a proposal to the railroad company to the effect that if it would locate, construct, and put into operation a certain line of railroad, then patents would issue to certain of the public lands within the descriptive terms of the grant, and its purpose was to bring about the construction of the railroad with the resulting advantages to the Government and the public, and on the construction of the road and the acceptance of the provisions of the act the parties were brought into contractual relation and its provisions became obligatory on both.

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

The original grant under this act was to the Atlantic & Pacific Railroad Co., its successors and assigns, and the act of March 3, 1871 (16 Stat. 579, sec. 23), was to the Southern Pacific Railroad Co. in express terms and supplemental to the original and all mineral lands were expressly excluded from the operation of the act, and in lieu thereof a like quantity of unoccupied, nonmineral lands within certain limits were granted; but by express provision the word "mineral" was not to include iron or coal.

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

2. MINERAL LANDS EXCEPTED FROM GRANT.

This grant excepts all mineral lands whether known or unknown at the time of the grant, and makes provision for substituting other lands if any within the grant are found to be mineral in character; but when the officers of the Land Department have examined and classified the lands within such grant and thereupon issue a patent to the grantee or its successor, the question of its mineral or nonmineral character is thereby determined, and any such tract is not thereafter open to a claim on the ground of its mineral character, as the patent is conclusive upon its mineral character. Roberts v. Southern Pac. R. Co., 186 Fed. 934, p. 935.

Under the holding of the Supreme Court these railroad grants in themselves except all mineral lands whether known or unknown at the time of the grant, and other holdings are to the effect that after a patent is issued to a grantee under these railroad land grants, then no part of such grants are open to mineral claims, and these holdings can be reconciled on the theory that after the officers of the Land Department have classified the lands of such grants with reference to their mineral and nonmineral character and thereupon issued a patent therefor to the railroad companies, the patents are conclusive and binding upon the Government, and prevents any subsequent claim to any of such lands on the ground that they are mineral.

Roberts v. Southern Pac. R. Co., 186 Fed. 934.

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

Shaw v. Kellogg, 170 U. S. 312.

The provisions of this act as to mineral lands were not a mere reservation of minerals, but an exclusion of mineral lands coupled with a provision that the railroad company should receive other lands not mineral in lieu thereof, and shows that a determination of the character of the lands, as mineral or nonmineral, was plainly contemplated, and Congress confided the identification of the lands included and excluded to the Land Department and directed that the indemnity lands should be selected under the direction of the Secretary of the Interior.

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

Mineral lands are expressly excluded from the grant, and the railroad company can not select mineral lands as indemnity.

Southern Pac. R. Co. v. Allen Gold Min. Co., 13 L. D. 165.
See Central Pac. R. Co. v. Valentine, 11 L. D. 238.

Any land within this grant, if mineral in character, is open to exploration and purchase under the mining laws of the United States, as the grant to the railroad company expressly excepts mineral lands from its operation.

Walker v. Southern Pac. R. Co., 24 L. D. 172, p. 174.

See Swank v. California, 27 L. D. 411, p. 413.

Section 3 of this act expressly reserved all mineral lands from the operation of the act and gave the railroad company the right to select indemnity land in lieu thereof. Walker v. Southern Pac. R. Co., 24 L. D. 172, p. 173.

By express provision of this act all mineral lands are excluded from its operation except lands containing iron or coal.

Hutton v. Forbes, 31 L. D. 325, p. 328.

The grant to the railroad company included every alternate section of public land not mineral.

Jacob, In re, 7 C. L. O. 83.

3. KINDS OF MINERALS EXCEPTED.

Mineral lands which in law exclude them from a railroad grant include not merely metalliferous minerals, but all such as are chiefly valuable for other deposits of a mineral character which are useful in the arts or valuable for purposes of manufacture. Southern Pac. R. Co., In re, 41 L. D. 264, p. 265.

This act does not except from the grant as mineral such lands as were simply valuable for their deposit of limestone, as such lands under the laws then in force were not subject to disposal as mineral, but were disposed of as agricultural when used for agricultural purposes.

Jacob, In re, 7 C. L. O. 83.

4. OIL AS MINERAL-LANDS EXCEPTED.

Oil or petroleum lands are mineral lands within the meaning of that term in this grant.

Burke v.
See Ohio Oil Co. v. Indiana Co., 177 U. S. 190, p. 202.
Northern Pac. R. Co. v. Soderberg, 188 U. S. 526.

Southern Pac. R. Co., 234 U. S. 669.

Congress has at various times spoken of oil as a mineral.

Burke V.

Southern Pac. R. Co., 234 U. S. 669.

The Land Department has regarded petroleum as a mineral and has treated lands chiefly valuable therefor as mineral lands.

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

Deposits of petroleum oil come within the definition of mineral character of land and is sufficient to exclude such land from a railroad grant if discovered before patent issues.

Southern Pac. R. Co., In re, 41 L. D. 264, p. 265.

The mineral character of land is prima facie established, sufficient to exclude it from a railroad grant, by its proper classification as oil-bearing land, and the Secretary is thereafter without power to issue a patent for such land.

Southern Pac. R. Co., In re, 41 L. D. 264 p. 265.
California, In re, 41 L. D. 592, p. 597.

5. INDEMNITY LANDS

MINERALS EXCEPTED.

Section 18 of this act grants the Southern Pacific Railroad Co. land subject to all the conditions and limitations and under the regulations as that of the Atlantic & Pacific

Railroad, and accordingly lands chiefly valuable for mineral deposit or asphaltum are not subject to selection as indemnity lands under the grant that expressly excepts mineral lands.

Tulare Oil & Min. Co. v. Southern Pac R. Co., 29 L. D. 269, p. 272.

6. CHARACTER OF LAND DETERMINATION.

The character of the land in all such grants is a question for the Land Department, the same as are the qualifications of the applicant and his performance of the acts upon which the right to receive the title depends, and when a patent issues it is to be taken, as against all collateral attack, as affording conclusive evidence of the nonmineral character of the land and of the regularity of the act and proceedings resulting in its issue, and upon a direct attack, as affording such presumptive evidence thereof as to require plain and convincing proof to overcome it.

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

See Smelting Co. v. Kemp, 104 U. S. 636, p. 641.

Steel v. Smelting Co., 106 U. S. 447.

In the nature of things under such a grant there must be some point of time when the character of the land must be finally determined and for the interests of all concerned there can be no better point to determine this question than at the time of issuing the patent; and there is no authority to issue a patent, which, in fact, only says that if the lands described hereafter turn out to be agricultural lands then they are granted, but if they turn out to be mineral lands then they are not granted. Burke v. Southern Pac. R. Co., 234 U. S. 669.

Cowell v.

Lammers, 21 Fed. 200.

7. DECISIONS OF LAND DEPARTMENT CONCLUSIVE.

In cases arising before the Land Department where there is difficulty on the part of its officers to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands, these officers will be governed by the knowledge of the lands obtained at the time as to their real charaacter, and this determination of the facts by these officers that they are one or the other is conclusive. Roberts v. So. Pac. R. Co., 186 Fed. 934, p. 935. Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 329.

Congress intended that the Land Department should determine the character of the lands granted as to their being mineral or nonmineral by an examination and classification before patent, and that the patents issued pursuant to such classification should convey the Government's entire title to the land embraced in any such patent.

Roberts v. Southern Pac. R. Co., 186 Fed. 934, p. 940.

If the land officers are induced by fraud or false proofs to issue a patent for mineral lands under a nonmineral-land law, or after such patent is issued by inadvertence, the Government may maintain a suit to annul the patent, or a mineral claimant who had acquired a vested right in the land, might maintain a bill to have the patentee declared a trustee for him; but such a patent is merely voidable and is not void, and can not be attacked by strangers who had no interest in the land at the time the patent was issued.

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

See Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 313.

Diamond Coal Co. v. United States, 233 U. S. 236, p. 239.

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