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9. PATENT.

a. OFFICE AND EFFECT.

The fact that the office of a patent is to define and identify the land granted and to evidence the title which vests by the act necessarily implies the existence of jurisdiction in some tribunal to ascertain and determine what lands were subject to the grant and capable of passing thereunder, and under this jurisdiction the department refuses to issue patents to railroad companies for lands found to be mineral in character at any time before the date of the patent.

Central Pac. R. Co. v. Valentine, 11 L. D. 238, p. 246.

The issuance of a patent under this act is a determination by the proper tribunal that the lands covered by the patent were granted to the railroad company and were not, in fact, mineral lands at the date of the patent.

Sponge, In re, 13 C. L. O. 207.

A clause of exception and exclusion as to mineral lands in a patent in no way affects the rights of the parties given by this statute, and the same force and effect must be given to the patent upon collateral attack as it would have received had such exception been omitted.

Cowell v. Lammers, 21 Fed. 200, p. 208.

b. MEANING AND EXTENT OF EXCEPTING CLAUSE.

The excepting clause in the patent to the Central Pacific Railroad Co., excluding all mineral lands, other than coal and iron lands, from such transfer, means lands known to contain valuable minerals prior to the issuing of such patent and subsequent discoveries can not affect the title of the company to the land.

Cowell v. Lammers, 21 Fed. 200, p. 202.

There is no authority for issuing a patent which in effect says that if the lands herein described turn out to be agricultural lands then they are granted, but if they turn out to be mineral lands then they are not granted.

Cowell v. Lammers, 21 Fed. 200, p. 208.

C. SUBSEQUENT DISCOVERY OF MINERALS-EFFECT ON TITLE.

In the grant of lands to the Central Pacific Railroad Co., Congress did not intend to exclude lands on which mineral should be subsequently discovered, but which did not fall within the statutory contemplation of mineral lands at the time of the grant. Francoeur v. Newhouse, 40 Fed. 618, p. 621.

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

The discovery of a gold mine after lands were granted to the Central Pacific Railroad Co., and title had vested, did not defeat the title, where such lands were not known to be mineral at the time of the grant.

Francoeur v. Newhouse, 40 Fed. 618.

Valentine v. Valentine, 47 Fed. 597.

Northern Pac. R. Co. v. Walker, 47 Fed. 681, p. 683.

The discovery of gold-bearing quartz in lands many years after their grant to a railroad company will not defeat the grant, where there was nothing appearing at the time to take the lands out of the operation of the grant.

Francoeur v. Newhouse, 40 Fed. 618, p. 622.

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

The discovery of the mineral character of land within the lateral limits of this grant after the date when the railroad company acquired possession, established the fact that such lands were always mineral lands and brings them clearly within the

excepting clause of the grant, and they are no less mineral lands because not known to be such at the date of this grant or at the date the railroad company acquired possession.

Central Pac. R. Co. v. Valentine, 11 L. D. 238,
Bullock v. Central Pac. R. Co., 11 L. D. 590.

p. 243.

10. LANDS VALUABLE FOR STONE.

Where Congress has chosen the word "mineral” as including lands chiefly valuable for stone, to define a class of lands reserved from the grant to such railroad company, the courts have no authority to narrow or limit the definition in order to enhance the value of the grant, and to diminish the rights of the general public, and the fact of an exception of coal and iron does not justify such a construction.

Northern Pac. R. Co. v. Soderberg, 99 Fed. 506, p. 507.
See Northern Pac. R. Co. v. Soderberg, 104 Fed. 425.

B. CONVEYANCE BY RAILROAD COMPANY-RIGHT AND TITLE OF

PURCHASER.

The Central Pacific Railroad Co. can not make a valid grant of a tract of land on which mining has been carried on, and which was believed to be mineral land, and when the land agent of the railroad company informed the purchaser that its status as mineral land would be sustained.

Valentine v. Valentine, 47 Fed. 597, p. 599.

The good faith of a purchaser of lands from a railroad company as patentee under a railroad grant, as well as the validity of the original patent, is to be determined by the known character of the land at the date of the original patent.

United States v. Central Pac. R. Co., 93 Fed. 871, p. 873.

Mineral lands excepted from the operation of this grant to the railroad company were excluded and excepted by all patents issued conveying lands described to the railroad company, and the purchaser of any such land from the railroad company has the right to cut wood or timber thereon.

Merrill v. Dixon, 15 Nev. 401, p. 405.

13 STAT. 356, p. 358, JULY 2, 1864.

AMENDMENT TO 12 STAT. 489-UNION PACIFIC.

AN ACT To amend an act entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, etc.," (12 Stat. 489).

*

Be it enacted, etc.,

SEC. 4. And be it further enacted, That section 3 of said act be hereby amended by striking out the word "five," where the same occurs in said section, and by inserting in lieu thereof the word "ten," and by striking out the word "ten," where the same occurs in said section, and by inserting in lieu thereof the word "twenty." And section 7 of said act is hereby amended by striking out the word "fifteen," where the same occurs in said section, and inserting in lieu thereof the word "twenty-five." And 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. And any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any preemption, homestead, swamp land, or other lawful claim, nor include any Government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned and denominated as mineral lands, and

the timber necessary to support his said improvements as a miner, or agriculturist, to be ascertained under such rules as have been or may be established by the Commissioner of the General Land Office, in conformity with the provisions of the preemption laws: Provided, That the quantity thus exempted by the operation of this act, and the act to which this act is an amendment, shall not exceed 160 acres for each settler who claims as an agriculturist, and such quantity for each settler who claims as a miner, as the said commissioner may establish by general regulation: Provided, also, That the phrase "but where the same shall contain timber, the timber thereon is hereby granted to said company," in the proviso to said section 3, shall not apply to the timber growing or being on any land farther than 10 miles from the center line of any one of said roads or branches mentioned in said act, or in this act. And all lands shall be excluded from the operation of this act, and of the act to which this act is an amendment, which were located, or selected to be located, under the provisions of an act entitled "An act donating lands to the several States and Territories which may provide colleges for the benefits of agriculture and the mechanic arts," approved July 2, 1862. ***

A. CONSTRUCTION OF AMENDED ACT.

B. RAILROAD GRANT UNION PACIFIC.

C. COAL AND IRON NOT INCLUDED IN MINERAL LANDS, p. 1110.

A. CONSTRUCTION OF AMENDED ACT.

See 12 Stat. 489, p. 1099.

Section 4 is construed in the light of the general principle that Congress, in the act of making these grants of public lands, is not supposed to exercise its liberality at the expense of preexisting rights, which, though imperfect, were still meritorious and have just claims to legislative protection.

Broder v. Water Co., 101 U. S. 274, p. 276.

The reservation clause of this act is much more liberal in extending protection of preexisting rights than in the reservation clause in previous grants. Both the prior reservations made by the Government and rights of preemption are excepted, as well as the improvements of bona fide settlers on land returned or denominated mineral land, and the timber necessary to support the miner's improvements and any other lawful claim, evidenced by improvements or other acts of possession.

Broder v. Water Co., 101 U. S. 274, p. 277.

B. RAILROAD GRANT UNION PACIFIC.
1. POLICY OF GOVERNMENT TO EXCLUDE MINERALS.
2. MINERALS AND MINERAL LANDS EXCEPTED.
3. MINING CLAIMS- -EXCEPTION AND MEANING.
4. MINERALS AND IMPROVEMENTS EXCEPTED.
5. COAL AND IRON LANDS NOT EXCEPTED.

1. POLICY OF GOVERNMENT TO EXCLUDE MINERALS.

The policy of Congress, as expressed in the grants to aid in the construction of railroads (14 Stat. 83; 14 Stat. 94; 14 Stat. 239; 14 Stat. 292; 14 Stat. 548; 16 Stat. 573), has always been to exclude the mineral lands and reserve them for special disposition.

Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 317.
Whitney v. Taylor, 158 U. S. 85, p. 97.

The reservation of mineral lands in the several railroad grants was intended to keep them under the control of the Government for the public good in the development of the mineral resources of the country.

Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 319.

2. MINERALS AND MINERAL LANDS EXCEPTED.

By this section the grant to the Pacific Railroad Companies did not include mineral lands.

Mining Co. v. Consolidated Min. Co., 102 U. S. 167, p. 174.

Central Pac. R. Co. v. Valentine, 11 L. D. 238, p. 242.

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

All mineral lands are expressly excepted from the operation of this grant, and the amendatory act expressly provides that the grant shall not include any mineral lands.

Chicago Quartz Min. Co. v. Oliver, 75 Cal. 194, p. 196.

In all these grants (12 Stat. 489; 13 Stat. 356; 14 Stat. 83; 14 Stat. 94; 14 Stat. 239; 14 Stat. 292; 14 Stat. 548; 16 Stat. 573) minerals, except iron and coal, have uniformly been reserved, and in no instance has such a grant been held to pass minerals. Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 317. Traphagen v. Kirk, 30 Mont. 562, p. 572.

3. MINING CLAIMS-EXCEPTION AND MEANING.

This act, by its grant to the Northern Pacific Railroad Company, expressly excepts all lands to which the United States did not have title free from preemption or other claims or rights, and all mining claims properly located at the time of the location of the lode were excluded from the grant.

Northern Pac. R. Co. v. Sanders, 166 U. S. 620, p. 630.

All applications of record for the purchase of lands as mineral lands are “claims” within the meaning of this statute, and were excepted from its operation, and did not come under the grant to the railroad company, though the applications were finally rejected, because the lands were ascertained not to be mineral lands.

Northern Pac. R. Co. v. Sanders, 166 U. S. 620, p. 630.

The privilege of exploring for mineral lands was in full force at the time of the location of the Northern Pacific Railroad, and the right was reserved and excepted out of the grant to the company.

Barden v. Northern Pac. R. Co., 154 U. S. 288, p. 320.
Northern Pac. R. Co. v. Sanders, 166 U. S. 620, p. 635.
United States v. Oregon, etc., R. Co., 176 U. S. 28, p. 45.

4. MINERALS AND IMPROVEMENTS EXCEPTED.

The prior reservations made by the governor and rights of preemption are excepted, as well as the improvements of bona fide settlers on lands returned as mineral, together with the timber necessary to support the miners' improvements, and any other lawful claim.

Broder v. Water Co., 101 U. S. 274, p. 277.

In the original statute the word "or" is erroneously substituted for the word "on," and it is only the improvements of a bona fide settler on lands returned and denominated as mineral lands that are referred to in the act.

McLaughlin v. Menotti, 105 Cal. 572.

This statute is considered to mean that the lands granted shall not include any mineral lands, or the improvements of any bona fide settler on any lands returned as mineral.

Merrill v. Dixon, 15 Nev. 401, p. 407.

5. COAL AND IRON LANDS NOT EXCEPTED.

This section provides that the amendment shall not be construed so as to include coal and iron land, thus plainly including such land in the grant to the railroad company whenever found upon the odd sections granted.

Union Pac. R. Co. v. Crismon, Copp's Min. Lands, 340.

Rocky Mountain Coal & Iron Co., In re, 1 C. L. O. 1.

Under this act mineral lands are excluded from the grant to the Union Pacific Railroad Co., but provides that the term "mineral land" shall not include coal and iron lands.

Union Pac. R. Co. v. Crismon, In re, 2 C. L. O. 67.

Under this act coal lands to which rights had attached under the act of March 3, 1865 (13 Stat. 529), before the line of the railroad was definitely fixed at such lands, were excluded from the grant to the railroad company.

Union Pac. R. Co. v. Crismon, Copp's Min. Lands, 340, p. 341.

C. COAL AND IRON NOT INCLUDED IN MINERAL LANDS.

This act amending the act of 1862 (12 Stat. 492), declares that the term "mineral lands" shall not be construed to include coal and iron lands.

Davis v. Weibbold, 139 U. S. 507, p. 517.

By the express provisions of these statutes the term "mineral lands" does not include coal and iron lands.

Davis v. Weibbold, 139 U. S. 507, p. 519.

Alford v. Barnum, 45 Cal. 482.

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

These statutes making grants to the Union Pacific Railroad Co. expressly declare that all mineral lands other than coal and iron were excepted from the grant. Deffeback v. Hawke, 115 U. S. 392, p. 401.

14 STAT. 79, JULY 3, 1866.

AMENDMENT TO 12 STAT. 489-UNION PACIFIC.

AN ACT To amend an act entitled "An act to amend an act entitled 'An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean,' etc., approved July 1, 1862" (12 Stat. 489), approved July 2, 1864 (13 Stat. 356).

Be it enacted, etc., That the Union Pacific Railway Company, eastern division, is hereby authorized to designate the general route of their said road and to file a map thereof, as now required by law, at any time before December 1, 1866; and upon the filing of said map, showing the general route of said road, the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale by order of the Secretary of the Interior. *

NOTE. This act makes no reservation of or reference to minerals or mineral lands.

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