By the grant of public land made to the Northern Pacific
Railroad Company by the Act of July 2, 156, c. 217, 13 Stat. 365,
all mineral lands other than iron or coal are excluded from its
operation, whether known or unknown, and all such mineral lands,
not otherwise specially provided in the act making the grant, are
reserved exclusively to the United States, the company having the
right to select unoccupied and unappropriated agricultural lands in
odd sections nearest to the line of the road in lien thereof.
Deffeback v. Hawke, 115 U. S. 392, and
Davis v. Weibbold, 139 U. S. 507,
explained and distinguished.
This was an action for the possession of certain parcels of land
containing veins or lodes of rock in place bearing gold,
Page 154 U. S. 289
silver, and other precious metals, situated within section 27 of
township 10 north, range 4 west of the principal meridian of
Montana, claimed by the Northern Pacific Railroad Company -- the
plaintiff below, the defendant in error here -- as parts of the
land granted to it by the Act of Congress of July 2, 1864, c. 217,
13 Stat. 365, entitled "An act granting lands to aid in the
construction of a railroad and telegraph line from Lake Superior to
Puget Sound, on the Pacific coast, by the northern route," and the
acts and resolutions supplementary and amendatory thereof.
By its first section, the plaintiff was incorporated and
authorized to construct and maintain a continuous railroad and
telegraph line, with the appurtenances, from a point on Lake
Superior, in the State of Minnesota or Wisconsin, and thence
westerly, by the most eligible route, as should be determined by
the company, within the territory of the United States, on a line
north of the forty-fifth degree of latitude, to some point on Puget
Sound, with a branch by the valley of the Columbia River to a point
at or near Portland, in the State of Oregon. The company was
invested with all the powers, privileges, and immunities necessary
to carry into effect the purposes of the act.
By the third section, a grant of land, other than mineral, was
made to the company in words of present conveyance to aid in the
construction of the railroad and telegraph line and for other
purposes. Its language is:
"That there be, and hereby is, granted to the 'Northern Pacific
Railroad Company,' its successors and assigns, for the purpose of
aiding in the construction of said railroad and telegraph line to
the Pacific coast and to secure the safe and speedy transportation
of the mails, troops, munitions of war, and public stores over the
route of said line of railway
every alternate section of public
land, not mineral, designated by odd numbers, to the amount of
twenty alternate sections per mile on each side of said railroad
line, as said company may adopt, through the territories of the
United States, and ten alternate sections of land per mile on each
side of said railroad whenever it passes through any state, and
whenever on the line thereof the
Page 154 U. S. 290
United States have full title, not reserved, sold, granted, or
otherwise appropriated, and free from preemption or other claims or
rights at the time the line of said road is definitely fixed, and a
plat thereof filed in the office of the Commissioner of the General
Land Office, and whenever prior to said time any of said sections
or parts of sections shall have been granted, sold, reserved.
occupied by homestead settlers, or preempted, or otherwise disposed
of, other lands shall be selected by said company in lieu thereof,
under the direction of the Secretary of the Interior, in alternate
sections and designated by odd numbers, not more than ten miles
beyond the limits of said alternate sections."
The grant thus made is accompanied with certain conditions or
provisos -- these among others:
"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, may be
selected, as above provided, and that the word '
mineral'
when it occurs in this act shall not be held to include iron or
coal."
By the fourth section it was enacted:
"That whenever said Northern Pacific Railway Company shall have
twenty-five consecutive miles of any portion of said railroad and
telegraph line ready for the service contemplated, the President of
the United States shall appoint three commissioners to examine the
same, and if it shall appear that twenty-five consecutive miles of
said road and telegraph line have been completed in a good,
substantial, and workmanlike manner, as in all other respects
required by this act, the commissioners shall so report to the
President of the United States, and patents of lands, as aforesaid,
shall be issued to said company, confirming to said company the
right and title to said lands, situated opposite to and coterminous
with said completed section of said road, and from time to time,
whenever twenty-five additional consecutive miles shall have been
constructed, completed, and in readiness as aforesaid, and
certified by said commissioners to the President of the United
States, then patents shall be issued to said company conveying the
additional
Page 154 U. S. 291
sections of lands as aforesaid, and so on as fast as every
twenty-five miles of said road is completed as aforesaid."
By the sixth section, it was enacted:
"That the President of the United States shall cause the lands
to be surveyed for forty miles in width on both sides of the entire
line of said road, after the general route shall be fixed, and as
fast as may be required by the construction of said railroad, and
the odd sections of land hereby granted shall not be liable to sale
or entry or preemption before or after they are surveyed, except by
said company, as provided in this act; but the provisions of the
Act of September, 1841, granting preemption rights, and the acts
amendatory thereof, and of the act entitled 'An act to secure
homesteads to actual settlers on the public domain,' approved May
20, 1862, shall be, and the same are hereby, extended to all other
lands on the line of said road, when surveyed, excepting those
hereby granted to said company, and the reserved alternate sections
shall not be sold by the government at a price less than two
dollars and fifty cents per acre, when offered for sale."
The complaint alleges that the general route of the railroad
extending through Montana was fixed February 21, 1872, and the
lands in controversy were within forty miles of such general route,
and were public lands not reserved, sold, granted, or otherwise
appropriated, and were free from preemption or other claims or
rights; that thereafter, July 6, 1882, the line of the road,
extending opposite and past the described lands, was definitely
fixed, and a plat thereof filed in the office of the Commissioner
of the General Land Office, and that the demanded parcels were
within forty miles of the line thus definitely fixed; that
thereafter the plaintiff constructed and completed that portion of
its railroad and telegraph line extending over and along the line
of definite location; that thereafter the President of the United
States appointed three commissioners to examine the same, and they
reported to him that that portion of the railroad and telegraph
line had been completed in a good, substantial, and workmanlike
manner, in all respects, as
Page 154 U. S. 292
required by the Act of July 2, 1864, and the act supplementary
thereto and amendatory thereof; that the President accepted the
line as thus constructed and completed; that at the time of filing
the plat of definite location in the office of the Commissioner of
the General Land Office, namely, July 6, 1882, the described land
was not
known mineral land, and was more valuable for
grazing than for mining purposes; that in 1868, all the lands in
township 10 north, of range 4 west, were duly surveyed, and the
township plat was, September 9, 1868, filed in the United States
district land office for the district of Helena, Montana, that
being the district in which said township is situated, and by that
survey the land of the township was ascertained and determined to
be agricultural, and not mineral, and that said determination and
report have continually remained in force; that after the
completion of the railroad, the plaintiff listed the section,
including the lands described and other lands, as portions of the
grant, and on November 8, 1868, filed the list in the district land
office at Helena, and paid the fees allowed by law; that the list
was accepted and approved by the receiver and register, and
certified to the Commissioner of the General Land Office, and has
since remained in the same district land office and in the office
of the commissioner; that at the time of the acceptance, approval,
and allowance of the list, and at all times prior thereto, no part
of the land was
known mineral land, or was of greater
value for mining purposes than for grazing, agricultural, or town
site purposes; that during the year 1888, certain veins or lodes of
rock in place, bearing gold and silver and other precious metals,
were discovered on said described land, and thereafter William B.
Wells, William Muth, Harpin Davies, and Richard P. Barden, citizens
of the United States, without the consent and against the will of
the plaintiff, entered upon said land and made locations of said
veins and lodes upon certain lots thereof, as follows, to-wit, the
Vanderbilt quartz lode mining claim on lot 68, August 10, 1888, the
Four Jacks and the New York Central and Hudson River quartz lode
mining claims on lots 72, 74, and 75, respectively, May 9, 1889,
and the Chauncey M. Depew quartz lode mining claim on lot
Page 154 U. S. 293
73 -- all of said lots being within section 27, township 10
north, range 4 west; that the defendants are in possession of said
lots, claiming under said locations, through mesne conveyances from
the locators, and have been and are extracting ore therefrom, and
that the same are mineral lands.
And the complaint further alleges that the United States have
failed, neglected, and refused to issue to the plaintiff a patent
for said land, though all acts required by law to entitle the
plaintiff to a patent have been fully performed; that the title to
the premises has vested in the plaintiff under and by virtue of the
acts of Congress, and its compliance therewith; that the lots
designated are of the value of over $6,000, and that the value of
the ore wrongfully extracted and taken from them by the defendants
is over $100.
Wherefore, the plaintiff prays judgment against defendants for
the recovery of the possession of the said lots, for the value of
the ore so extracted, and for costs.
To this complaint the defendants demurred on the ground that it
did not state facts sufficient to constitute a cause of action, and
entitle the plaintiff to the relief prayed. The demurrer was argued
before the circuit judge and the district judge holding the Circuit
Court of the Ninth Circuit at Helena, in the State of Montana, and
they differed in opinion upon the demurrer, the circuit judge
holding that it was insufficient, and should be overruled, and the
district judge dissenting therefrom. Judgment was accordingly
entered overruling the demurrer, and the defendants were allowed
ten days within which to answer the complaint. But they came into
court and stated that they would abide by their demurrer, and
declined to file an answer, whereupon their default was entered
and, on application of the plaintiff's attorneys, it was ordered
that judgment be entered against them for the recovery of the
possession of the lots designated, the value of the ore taken
therefrom, and costs of suit, which was accordingly done. To the
ruling of the court in overruling the demurrer exception was taken
by the defendants, and to reverse the judgment they have brought
the case to this Court on writ of error.
Page 154 U. S. 311
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the court.
Page 154 U. S. 312
This action is brought for the possession of certain parcels or
lots of mineral land claimed by the plaintiff below -- the
defendant in error here -- as embraced in the grant of the United
States of July 2, 1864. The facts constituting the claim of the
plaintiff are set forth at length in the complaint, and to their
sufficiency the defendants demurred, as not constituting a cause of
action or entitling the plaintiff to the relief prayed. The lots
are there conceded to be mineral lands, and the grant of the
government applies in terms only to lands other than mineral.
To remove any doubt of the intention of the government to
confine its concession to lands of that character, the grant is
accompanied with a proviso declaring that all mineral lands are
excluded from its operations. And as if to cut off every possible
suggestion by any ingenious and strained construction that mineral
lands might be reached under the legislation giving vast tracts of
public lands to states and private corporations under the pretense
of aiding public improvements, a joint resolution was passed by
Congress in January of the following year declaring
"that no act passed at the first session of the thirty-eighth
Congress [that being of the year 1864] granting lands to states or
corporations to aid in the construction of roads or for other
purposes or to extend the time of grants heretofore made shall be
so construed as to embrace mineral lands, which in all cases shall
be and are reserved exclusively to the United States, unless
otherwise specially provided in the act or acts making the
grant."
13 Stat. 567. This provision should be borne in mind when the
statement is made, as it is, that there has been no reservation of
mines or minerals to the government.
No part of the contemplated road or telegraph line of the
Northern Pacific Railroad Company had at the passage of this joint
resolution been constructed or commenced, and on the authority of
the case of that
Company v. Traill County, 115 U.
S. 600, its provisions are to be deemed an amendment of
the original act, and as operative as if originally incorporated
therein.
The action being for the possession of lands conceded to be
Page 154 U. S. 313
mineral under the Act of Congress of July 2, 1864, it would seem
that the simple reading of the granting clause and its proviso, and
the joint resolution mentioned, would be a sufficient answer to the
complaint and a sufficient reason to sustain the demurrer without
further consideration. But the plaintiff's counsel appear to find
in the fact which they allege, that the lands were not known to be
mineral at the time the plaintiff, by the definite location of the
line of its road, was able to identify the sections granted, a
sufficient ground to avoid the limitations of the grant and the
prohibitions of the proviso and joint resolution.
The grant was of twenty alternate sections of land, designated
by odd numbers, on each side of the road which the plaintiff was
authorized to construct -- a tract of 2,000 miles in length and 40
miles in width, constituting a territory of 80,000 square miles. It
is true the grant was a float, and the location of the sections
could not be made until the line of the proposed road had become
definitely fixed. The ascertainment of the location of the sections
in no respect affected the nature of the lands or the conditions on
which their grant was made. If swamp lands or timber lands or
mineral lands previously, they continued so afterwards.
It is also true that the grant was one
in praesenti, of
lands to be afterwards located. From the immense territory from
which the sections were to be taken, it could not be known where
they would fall until the line of the road was established. Then
the grant attached to them, subject to certain specified exceptions
-- that is, the sections, or parts of sections, which had been
previously granted, sold, reserved, occupied by homestead settlers,
or preempted, or otherwise disposed of, were excepted, and the
title of its other sections or parts of sections attached as of the
date of the grant, so as to cut off intervening claimants. In that
sense, the grant was a present one. But it was still, as such
grant, subject to the exception of mineral lands made at its date
or then excluded therefrom by conditions annexed. Whatever the
location of the sections and whatever the exceptions then arising,
there remained that original exception declared in the creation of
the grant. The
Page 154 U. S. 314
location of the sections, and the exceptions from other causes,
in no respect affected that one or limited its operation. There is
no language in the act from which an inference to that effect can
be drawn in the face of its declaration that all mineral lands are
thereby "excluded from its operations" and of the joint resolution
of 1865 that
"no act of the thirty-eighth Congress [that is, of the previous
session of 1864], granting lands to states or corporations, to aid
in the construction of roads or for other purposes shall be so
construed as to embrace mineral lands."
The plaintiff, however, appears to labor under the persuasion
that only those mineral lands were excepted from the grant which
were known to be such on the identification of the granted sections
by the definite location of the proposed road, and the
ascertainment at that time of the exceptions from them of parcels
of land previously disposed of, and that the want of such knowledge
operated in some way to eliminate the reservation made by Congress
of the mineral lands. But how the absence of such knowledge, on the
ascertainment of the sections granted, and the parcels of land
embraced therein, previously disposed of, had the effect, or could
have the effect, to eliminate the reservation of mineral lands from
the act of Congress, we are unable to comprehend. Such a conclusion
can only arise from an impression that a grant of land cannot be
made without carrying the minerals therein, and yet the reverse is
the experience of every day. The granting of lands, either by the
government or individuals, with a reservation of certain quarries
therein, as of marble or granite or slate or of certain mines, as
of copper or lead or iron, found therein is not an uncommon
proceeding, and the knowledge or want of knowledge at the time by
the grantee, in such cases, of the property reserved in no respect
affects the transfer to him to the title to it. No one will affirm
that want of such knowledge on the identification of the lands
granted, containing the reserved quarries or mines, would vacate
the reservation, and we are unable to perceive any more reason,
from that cause, for eliminating the reservation of minerals in the
present case from the grant of the government than for eliminating
for a like cause the reservation
Page 154 U. S. 315
of quarries or mines in the cases supposed. And it will hardly
be pretended that Congress has not the power to grant portions of
the public land with a reservation of any severable products
thereof, whether minerals or quarries contained therein and whether
known or unknown; yet such must be the contention of the plaintiff
or its conclusion will fall to the ground. The cases cited in
support of the claim of the plaintiff only show that the
identification of the sections granted and of the exceptions
therefrom of parcels of land previously disposed of leaves the
title of the remaining sections or parts thereof to attach as of
the date of the grant, but has absolutely no other effect. Such is
the purport, and the sole purport, of the cases of
St. Paul
& Pacific Railroad Company v. Northern Pacific Company,
139 U. S. 1,
139 U. S. 5, and
Deseret Salt Company v. Tarpey, 142 U.
S. 241,
142 U. S. 247,
cited by the plaintiff. In both of those cases, the writer of this
opinion had the honor to write the opinions of this Court, and it
was never asserted or pretended that they decided anything whatever
respecting the minerals, but only that the title to the lands
granted took effect, with certain designated exceptions, as of the
date of the grant. They never decided any thing else. And what was
that title? It was of the lands which at the time of the grant were
not reserved as minerals, and of the lands which at the time of the
location had not been sold, reserved, or to which a preemption or
homestead right had not attached. If one were to sell land,
reserving therefrom the minerals of gold or silver found therein,
and tell the purchaser to take the surveyor and measure off the
land, would it be urged or pretended that, the moment the surveyor
ascertained the boundaries of the land sold, the reservation of the
minerals then undiscovered would be eliminated? Would anyone uphold
the reasoning or the doctrine which would assert such a conclusion?
And can anyone see the difference between the case now before us
and the case supposed? Not a word was said or suggested in the
cases cited about the elimination of the reservation for that
cause, and not only in the cases cited by the plaintiff, but in a
multitude of other cases, almost without number, a like silence
Page 154 U. S. 316
was observed. In none of them was it ever pretended that the
ascertainment of the location of the lands granted operated to
withdraw from the grant the reservation of the minerals then
undisclosed. The grant did not exist without the exception of
minerals therefrom, and Congress has declared in positive terms
that the act shall not be construed to embrace them, and there is
nothing in any of the cases cited in the plaintiff's contention
which indicates in the slightest degree that the original exception
was subsequently qualified.
It seems to us as plain as language can make it that the
intention of Congress was to exclude from the grant actual mineral
lands, whether known or unknown, and not merely such as were at the
time known to be mineral. After the plaintiff had complied with all
the conditions of the grant, performed every duty respecting it,
and, among other things, that of definitely fixing the line of the
route, its grant was still limited to odd sections which were not
mineral at the time of the grant, and also to those which were not
reserved, sold, granted, or otherwise appropriated, and were free
from preemption and other claims or rights at the time the line of
the road was definitely fixed, and was coupled with the condition
that all mineral lands were excluded from its operation, and that
in lieu thereof a like quantity of unoccupied and unappropriated
agricultural lands, in odd sections, nearest to the line of the
road, might be selected.
There is, in our judgment, a fundamental mistake made by the
plaintiff in the consideration of the grant. Mineral lands were not
conveyed, but by the grant itself, and the subsequent resolution of
Congress cited, were specifically reserved to the United States,
and excepted from the operations of the grant. Therefore they were
not to be located at all, and if in fact located, they could not
pass under the grant. Mineral lands being absolutely reserved from
the inception of the grant, Congress further provided that,
at
the time of the location of the road, other lands should be
excepted,
viz., those previously sold, reserved, or to
which a homestead or preemption right had attached.
It is difficult to perceive the principle upon which the
term
Page 154 U. S. 317
"known" is sought to be inserted in the act of Congress, either
to limit the extent of its grant or the extent of its mineral,
though its purpose is apparent. It is to add to the convenience of
the grantee and enhance the value of its grant. But to change the
meaning of the act is not in the power of the plaintiff, and to
insert by construction what is expressly excluded is, in terms,
prohibited. Besides the impossibility, according to recognized
rules of construction, of incorporating in a statute a new term --
one inconsistent with its express declarations -- there are many
reasons for holding that the omission of the word "known," as
defining the extent of the mineral lands excluded, was purposely
intended.
The grant to the railroad company was, as we have already
mentioned, two thousand miles in length and forty miles in width,
making an area of eighty thousand square miles, a territory nearly
equal in extent to that of Ohio and New York combined. This
territory was known to embrace in its hills and mountains great
quantities of minerals of various kinds, and, among others, those
of gold and silver. It was sparsely inhabited, and in many
districts of large extent was entirely unoccupied. The policy of
Congress, as expressed in its numerous grants of public lands to
aid in the construction of railroads, has always been to exclude
the mineral lands from them and reserve them for special
disposition, as seen in the following acts, among others: Acts July
1, 1862, c. 120, 12 Stat. 489, and of July 2, 1864, x. 216, 13
Stat. 356, making grants to the Union and Central Pacific
Companies; Act July 4, 1866, c. 165, 14 Stat. 83, making a grant to
the Iron Mountain Railroad Company; Act July 13, 1866, c. 182, 14
Stat. 94, making a grant to the Placerville, &c., Railroad; Act
July 25, 1866, c. 242, 14 Stat. 239, making a grant to the
California and Oregon Railroad, sections 2 and 10; Act July 27,
1866, c. 278, 14 Stat. 292, making a grant to the Atlantic and
Pacific Railroad and to the Southern Pacific Railroad; Act March 2,
1867, c. 189, 14 Stat. 548, making a grant to the Stockton and
Copperopolis Railroad; Act March 3, 1871, c. 122, 16 Stat. 573,
making a grant to the Texas Pacific Railroad. In all of these cases
and in all grants
Page 154 U. S. 318
of public lands in aid of railroads, minerals (except iron and
coal) have uniformly been reserved, and in no instance has such a
grant been held to pass them. Patents issued after an examination
and determination of the fact by the government whether portions of
the land embraced in such grants did or did not contain other
minerals have been held as conclusive in subsequent controversies,
and of this we shall speak more fully hereafter, but grants in aid
of railroads (and we speak of no other grants) before such
determination and issue of a patent have never been held to pass
other minerals than iron or coal, and it is only with other
minerals, and with lands containing them, that we are concerned in
this case.
When the act was passed making the grant to the plaintiff, it
would have been impossible to state with any accuracy what parts of
the tract contained minerals and what did not. That fact could only
be ascertained after extensive and careful explorations, and it is
not reasonable to suppose that Congress would have left that
important fact dependent upon the simple designation by the
plaintiff of the line of its road, and the possible disclosure of
minerals by the way, instead of leaving it to future and special
explorations for their discovery. To suppose that Congress intended
any such limitation would be to impute to it a desire that its
exclusion of minerals from the grant should be defeated, which it
is impossible to admit. It is conceded that, in the interpretation
of statutes like the one before us, reference may be had not only
to the physical condition of the country and its surroundings, but
that its political conditions and necessities may also be
considered. The tract granted covered a belt believed to be rich in
minerals of gold and silver, and the United States were at the time
engaged in a terrific conflict for the preservation of the Union,
incurring an immense debt, exceeding $2,000,000,000, and many of
their citizens engaged in the struggle looked forward hopefully and
confidently to this source for relief to the burdened Treasury. And
we cannot, with reason, suppose that under these circumstances, the
United States intended that the control of this source of wealth
and relief should be taken from them. It passes belief that they
could have deliberately
Page 154 U. S. 319
designed, in this hour of sore distress and fearful pressure
upon their finances, to give away to a corporation of their own
creation not only an imperial domain in land, but the boundless
wealth that might lay buried in the mineral regions covered by
80,000 square miles. They knew that the mineral belt over which the
proposed railroad was to pass was almost entirely unexplored. They
therefore retained from their grant the mineral lands, whether
known or unknown, and left the discovery of the minerals to future
explorations and their disposition to future legislation. We can
never admit that at the time and under the circumstances upon which
the grant was made, Congress intended that its clear words of
exclusion of minerals should be interpreted to mean the exact
reverse; that when it declared that "no act of Congress granting
lands in aid of railroads" passed during the session of 1864 (the
session at which the grant under consideration was made) should "be
construed to embrace minerals," it meant that such act might be so
construed. Never has it as yet fallen to Congress to deceive by its
legislation and juggle in this way.
To incorporate the term "known" into the act and add it to the
description of the mineral excepted would also contravene a settled
rule in the construction of grants like the one before us -- that
nothing will pass to the grantee by implication or inference unless
essential to the use and enjoyment of the thing granted, and that
exceptions intended for the benefit of the public are to be
maintained and liberally construed. As justly observed by counsel
for the defendants in their very able brief,
"the reservation in the grant of mineral lands was intended to
keep them under government control for the public good, in the
development of the mineral resources of the country and the benefit
and protection of the miner and explorer, instead of compelling him
to litigate or capitulate with a stupendous corporation, and
ultimately succumb to such terms, subject to such conditions, and
amenable to such servitudes as it might see proper to impose. The
government has exhibited its beneficence in reference to its
mineral lands as it has in the disposition of its agricultural
lands, where the
Page 154 U. S. 320
claims and rights of the settlers are fully protected. The
privilege of exploring for mineral lands was in full force at the
time of the location of the definite line of the road, and was a
right reserved and excepted out of the grant at that time."
Some weight is sought to be given by counsel of the plaintiff to
the allegation that the lands in controversy are included in the
section which was surveyed in 1868, and a plat thereof filed by the
surveyor in the local land office in September of that year, from
which it is asserted that the character of the land was ascertained
and determined, and reported to be agricultural and not mineral.
But the conclusive answer to such alleged determination and report
is that the matters to which they relate were not left to the
surveyor general. Neither he nor any of his subordinates was
authorized to determine finally the character of any lands granted,
or make any binding report thereon. Information of the character of
all lands surveyed is required of surveying officers, so far as
knowledge respecting them is obtained in the course of their
duties, but they are not clothed with authority to especially
examine as to these matters outside of their other duties, or
determine them, nor does their report have any binding force. It is
simply an addition made to the general information obtained from
different sources on the subject. In
Cole v. Markley, 2
L.D. 847-849. Mr. Teller, when Secretary of the Interior, in a
communication to the Commissioner of the General Land Office,
speaks at large of the notations of surveyors, and says:
"Public and official information was the object of these
notations, with a view to preventing entry until the facts are
finally determined. They should be, and they are, only
prima
facie evidence, and subject to be rebutted by satisfactory
proof of the real character of the land."
The determination of the character of the land granted by
Congress in any case, whether agricultural or mineral or swamp or
timber land, is placed in the officers of the Land Department,
whose action is subject to the revision of the Commissioner of the
General Land Office, and, on a appeal from him, by the Secretary of
the
Page 154 U. S. 321
Interior. Under their direction and supervision, the actual
character of the land may be determined and fully established. The
effect of a patent issued by them under the authority of Congress
as to such matters we shall presently consider. In the present
case, the mineral character of the lands in controversy is
conceded. They are alleged in the complaint to be mineral lands
containing gold and silver and other precious metals.
Nor is there any force in the averments that in November, 1868,
the plaintiff listed the section embracing the mineral lands in
controversy, with other sections, as portions of its grant, and
filed the lists in the local land office at Helena, and paid the
receiver's fees for filing the same, and that the register and
receiver accepted, allowed, and approved the list and certified the
same to the Commissioner of the General Land Office, and that no
part of the fees has ever been refunded. The act of Congress does
not provide that selections of the lands by the plaintiff as a part
of its grant shall in any respect change its purport and effect and
eliminate any of its reservations, nor does it empower the officers
of the local land office to accept the list as conclusive with
respect to such grant in any particular. There was therefore no
obligation on the part of anyone to refund to the plaintiff the
fees paid on filing the list mentioned, when an attempt is made to
do away with its supposed effect.
There is in our opinion no merit in any of the positions
advanced by the plaintiff in support of its claim to the mineral
lands in controversy. The language of the grant to the plaintiff is
free from ambiguity. The exclusion from its operation of all
mineral lands is entirely clear, and if there were any doubt
respecting it, the established rule of construction applicable to
statutes making such grants would compel a construction favorable
to the grantor.
Some reference should be made here to the language used in the
cases of
Deffeback v. Hawke, 115 U.
S. 392, 399 [argument of counsel -- omitted], and
Davis v. Weibbold, 139 U. S. 507, as
it is contended that it is in conflict with the views expressed in
the present case. If so, the writer of this opinion, who was also
the writer of the opinions
Page 154 U. S. 322
in both of the cases cited, must take the responsibility of any
conflict with the views now expressed. It is more important that
the court should be right upon later and more elaborate
consideration of the cases than consistent with previous
declarations. Those doctrines only will eventually stand which bear
the strictest examination, and the test of experience.
The case of
Deffeback v. Hawke arose in this wise: the
plaintiff asserted title to mineral lands under a patent of the
United States founded upon an entry under the laws of Congress for
the sale of mineral lands. The defendant, not having the legal
title, claimed a better right to the premises by virtue of a
previous occupation of them by his grantor as a lot on a portion of
the public lands appropriated and used as a town site -- that is,
settled upon for purposes of trade and business, and not for
agriculture, and laid out into streets, lots, blocks, and alleys
for that purpose. And it was held by this Court that no title from
the United States to land known at the time of sale to be valuable
for its minerals of gold, silver, cinnabar, or copper could be
obtained under the preemption or homestead laws or the town site
laws, or in any other way than as prescribed by the laws specially
authorizing the sale of such lands. These three cases -- those
under the preemption and homestead laws and town site act -- were
classed together. It was found that under the preemption and
homestead act, lands containing known saline deposits and mines
could not be purchased. In the town site act it was provided that
by virtue of its provisions, no title could be acquired to any mine
of gold, silver, cinnabar, or copper, or to any valid mining claim
or possession held under existing laws, and under the mineral act
of Congress it was provided that in all cases, lands valuable for
minerals should be reserved from sale except as otherwise expressly
provided. The Court held that under those acts, land could be
purchased which was not known to be mineral, and from this the
inference was drawn that only lands known at the time of the sale
to be valuable for minerals could be excluded, and if they were not
thus known to be valuable for minerals, a sale might be had.
Page 154 U. S. 323
This was not a case arising upon a grant like the one under
consideration at present, but inasmuch as the law of Congress
authorized lands valuable for minerals to be sold generally under
the mineral act, and excluded from sale mineral lands when claimed
for homesteads or preemption of for town sites, it was thought that
these conflicting provisions of law would be reconciled by simply
excluding from the sale lands known at the time to be mineral. But
that case has no bearing upon the present one, involving the
construction of an act of Congress declaring in express terms that
no mineral lands shall be conveyed by the grant made.
The case of
Davis v. Weibbold was an action on the part
of a mineral claimant who had obtained a patent in January, 1880,
of a parcel of land within the exterior limits of Butte town site,
subsequently to the patent for the town site.
When the entry of the town site was had, and the patent issued,
and a sale was thereafter made to the defendant of the lots held by
him, it was not known -- at least, it does not appear that it was
known -- that there were any valuable mineral lands within the town
site, and the question was whether, in the absence of this
knowledge, the defendant, who claimed under the town site patent,
could be deprived by the laws of the United States of the premises
purchased and occupied by him because of a subsequent discovery of
minerals in them, and the issue of a patent to the discoverer under
whom the plaintiff claimed. The Court said that the declaration
that no title could be acquired under the provisions relating to
such town sites and the sale of lands therein to any mine of gold,
silver, cinnabar, or copper, or to any valid mining claim or
possession held under existing laws, would seem on first impression
to constitute a reservation of such mines in the land sold, and of
mining claims on them, to the United States. But such was held not
to be the necessary meaning of the terms used. In strictness, they
imported only that the provisions by which the title to the land in
such town sites was transferred should not be the means of passing
a title also to mines of gold, silver, cinnabar, or copper in the
land, or to valid mining claims or possessions thereon, but
Page 154 U. S. 324
that they were to be read in connection with the clause
protecting existing rights to mineral veins, and with the
qualification uniformly accompanying exceptions in acts of Congress
of mineral lands from grant or sale. Thus read, the Court held that
they merely prohibited the passage of title, under the provisions
of the town site laws, to mines of gold, silver, cinnabar, or
copper which were known to exist on the issue of the town site
patent and to mining claims and mining possessions in respect to
which such proceedings had been taken under the law or the custom
of miners as to render them valid, creating a property right in the
holder, and not to prohibit the acquisition for all time of mines
which then lay buried, unknown, in the depths of the earth. The
patent for the town site was therefore held to cover minerals
subsequently discovered in the lands patented. The patent was in
law a declaration that minerals did not exist in the premises when
it was issued, and the subsequent acquisition of minerals in the
town site was within the specific authorization of the act of
Congress that all valuable minerals should be open for exploration
and sale. There is a marked distinction between that case under the
town site law and the present case under a grant of Congress
excluding mineral lands from its operation, although it is conceded
that some of the language used is broader than the necessities of
the case required. Yet the effect given to the town site patent
will be found not inconsistent with the views hereafter expressed
in the present case.
Some effect is also sought to be given to the fact that Congress
authorized the Northern Pacific Railroad Company to place a
mortgage upon its entire property. Admitting that such is the fact,
the conclusion claimed does not follow. Congress thereby only
authorized a mortgage upon the property granted to the company,
which was the lands, without minerals. The mortgage could not cover
more than the property granted. So also it is said that the states
and territories through which the road passes would not be able to
tax the property of the company unless they could tax the whole
property, minerals as well as lands. We do not see why not.
Page 154 U. S. 325
The authority to tax the property granted to the company did not
give authority to tax the minerals, which were not granted. The
property could be appraised without including any consideration of
the minerals. The value of the property excluding the minerals
could be as well estimated as its value including them. The
property could be taxed for its value to the extent of the title
which is of the land.
The grant under consideration is one of a public nature. It
covers an immense domain, greater in extent than the area of some
of our largest states, and it must be strictly construed. It would
seem, from the frequency with which we have announced this
doctrine, that it should be forever closed against further
question, but as the most extravagant pretensions are made in the
plaintiff's construction of the present grant, we will venture to
refer to one or two of the important judicial declarations on that
subject.
The general rule when grants relate to matters of public
interest is thus forcibly expressed by Chief Justice Taney: "The
object and end of all government," said the Chief Justice, speaking
for the Court,
"is to promote the happiness and prosperity of the community by
which it is established, and it can never be assumed that the
government intended to diminish its power of accomplishing the end
for which it was created. . . . The continued existence of a
government would be of no great value if by implications and
presumptions it was disarmed of the powers necessary to accomplish
the ends of its creation, and the functions it was designed to
perform transferred to the hands of privileged corporations."
Charles River Bridge Co.
v. Warren Bridge Co., 11 Pet. 547.
In
Leavenworth Railroad Company v. United States,
92 U. S. 733, this
Court said:
"The rules which govern the interpretation of legislative grants
. . . apply as well to grants of lands to states to aid in building
railroads as to grants of special privileges to private
corporations. In both cases, the legislature, prompted by the
supposed wants of the public, confers on others the means of
securing an object the accomplishment of which it desires to
promote, but declines to undertake. . . .
Page 154 U. S. 326
If the terms are plain and unambiguous, there can be no
difficulty in interpreting them; but if they admit of different
meanings -- one of extension and one of limitation -- they must be
accepted in a sense favorable to the grantor."
In
Winona &c. v. Barney, 113 U.
S. 618,
113 U. S. 625,
speaking of the construction of legislative grants, the Court
said:
"They are to receive such a construction as will carry out the
intent of Congress, however difficult it might be to give full
effect to the language used, if the grants were by instruments of
private conveyance. To ascertain that intent, we must look to the
condition of the country when the acts were passed, as well as to
the purpose declared on their face, and read all parts of them
together."
The earnest contention of the counsel of the plaintiff arises
principally, we think, from an unfounded apprehension that our
interpretation will lead to uncertainty in the titles of the
country. If the exception of the government is not limited to
known minerals, the title, it is said, may be defeated
years after the land has passed into the hands of the grantee, and
improvements of great extent and value have been made upon its
faith. It is conceded to be of the utmost importance to the
prosperity of the country that titles to land and to minerals in
them shall be settled, and not be the subject of constant and
ever-recurring disputes and litigation, to the disturbance of
individuals and the annoyance of the public. We do not think that
any apprehension of disturbance in titles from the views we assert
need arise. The law places under the supervision of the Interior
Department and its subordinate officers, acting under its
direction, the control of all matters affecting the disposition of
the public lands of the United States and the adjustment of private
claims to them under the legislation of Congress. It can hear
contestants and decide upon the respective merits of their claims.
It can investigate and settle the contentions of all persons with
respect to such claims. It can hear evidence upon and determine the
character of lands to which different parties assert a right, and
when the controversy before it is fully considered and ended,
Page 154 U. S. 327
it can issue to the rightful claimant the patent provided by
law, specifying that the lands are of the character for which a
patent is authorized. It can thus determine whether the lands
called for are swamp lands, timber lands, agricultural lands, or
mineral lands, and so designate them in the patent which it issues.
The act of Congress making the grant to the plaintiff provides for
the issue of a patent to the grantee for the land claimed, and as
the grant excludes mineral lands, in the direction for such patent
to issue, the land office can examine into the character of the
lands and designate it in its conveyance.
It is the established doctrine, expressed in numerous decisions
of this Court, that wherever Congress has provided for the
disposition of any portion of the public lands of a particular
character and authorizes the officers of the Land Department to
issue a patent for such land upon ascertainment of certain facts,
that department has jurisdiction to inquire into and determine as
to the existence of such facts, and in the absence of fraud,
imposition, or mistake, its determination is conclusive against
collateral attack.
In
Smelting Co. v. Kemp, 104
U. S. 651, this Court thus spoke of the Land Department
in the transfer of public lands:
"The patent of the United States is the conveyance by which the
nation passes its title to portions of the public domain. For the
transfer of that title the law has made numerous provisions,
designating the persons who may acquire it and the terms of its
acquisition. That the provisions may be properly carried out, the
Land Department, as part of the administrative and executive branch
of the government, has been created to supervise all the various
proceedings taken to obtain the title, from their commencement to
their close. In the course of their duty, the officers of that
department are constantly called upon the hear testimony as to
matters presented for their consideration and to pass upon its
competency, credibility, and weight. In that capacity, they
exercise a judicial function, and therefore it has been held in
various instances by this Court that their judgment as to matters
of fact properly determinable by them is conclusive
Page 154 U. S. 328
when brought to their notice in a collateral proceeding. Their
judgment in such cases is, like that of other special tribunals
upon matters within their jurisdiction, unassailable except by a
direct proceeding for its correction or annulment. The execution
and record of the patent are the final acts of the officers of the
government for the transfer of its title, and as they can be
lawfully performed only after certain steps have been taken, that
instrument, duly signed, countersigned, and sealed, not merely
operates to pass the title, but is in the nature of an official
declaration by that branch of the government to which the
alienation of the public lands, under the law, is entrusted, that
all the requirements preliminary to its issue have been complied
with. The presumptions thus attending it are not open to rebuttal
in an action of law."
In
Steele v. Smelting Co., 106
U. S. 450, the language of the Court was that
"[t]he Land Department, as we have repeatedly said, was
established to supervise various proceedings whereby a conveyance
of the title from the United States to portions of the public
domain is obtained, and to see that the requirements of different
acts of Congress are fully complied with. Necessarily, therefore,
it must consider and pass upon the qualification of the applicant,
the acts he has performed to secure the title, the nature of the
land, and whether it is of the class which is open to sale. Its
judgment upon these matters is that of a special tribunal, and is
unassailable except by direct proceedings for its annulment or
limitation."
In
Heath v. Wallace, 138 U. S. 573, it
was held that
"The question whether or not lands returned as 'subject to
periodical overflow' are 'swamp and overflowed lands' is a question
of fact, properly determinable by the Land Department,"
and Mr. Justice Lamar added:
"It is settled by an unbroken line of decisions of this Court in
land jurisprudence that the decisions of that department upon
matters of fact within its jurisdiction are, in the absence of
fraud or imposition, conclusive and binding on the courts of the
country."
If the Land Department must decide what lands shall not be
patented because reserved, sold, granted, or otherwise
appropriated,
Page 154 U. S. 329
or because not free from preemption or other claims or rights at
the time the line of the road is definitely fixed, it must also
decide whether lands are excepted because they are mineral lands.
It has always exercised this jurisdiction in patenting lands which
were alleged to be mineral, or in refusing to patent them because
the evidence was insufficient to show that they contained minerals
in such quantities as to justify the issue of the patent. If, as
suggested by counsel, when the Secretary of the Interior has under
consideration a list of lands to be patented to the Northern
Pacific Railroad Company, it is shown that part of said lands
contain minerals of gold and silver discovered since the company's
location of its road opposite thereto, he would not perform his
duty, stated in
Knight v. Land Association, 142
U. S. 178, as the "supervising agent of the government,
to do justice to all claims, and preserve the rights of the people
of the United States," by certifying the list, until corrected in
accordance with the discoveries made known to the department. He
would not otherwise discharge the trust reposed in him in the
administration of the law respecting the public domain.
There are undoubtedly many cases arising before the Land
Department, in the disposition of the public lands, where it will
be a matter of much 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, and in such cases
the rule adopted, that they will be considered mineral or
agricultural as they are more valuable in the one class or the
other, may be sound. The officers will be governed by the knowledge
of the lands obtained at the time as to their real character. The
determination of the fact by those officers that they are one or
the other will be considered as conclusive.
In the case of
Central Pacific Railroad Company v.
Valentine, 11 L.D. 238, 246, the late Secretary of the
Interior, Mr. Noble, speaks of the practice of the Land Department
in issuing patents to railroad lands. His language is:
"The very fact, if it be true, that the office of the patent is
to define and identify the land granted and to evidence the
Page 154 U. S. 330
title which vested by the act necessarily implies that there
exists jurisdiction in some tribunal to ascertain and determine
what lands were subject to the grant and capable of passing
thereunder. Now this jurisdiction is in the Land Department, and it
continues, as we have seen, until the lands have been either
patented or certified to or for the use of the railroad company. By
reason of this jurisdiction, it has been the practice of that
department for many years past to refuse to issue patents to
railroad companies for lands found to be mineral in character at
any time before the date of patent. Moreover, I am informed by the
officers in charge of the mineral division of the Land Department
that ever since the year 1867, the date when that division was
organized, it has been the uniform practice to allow and maintain
mineral locations within the geographical limits of railroad grants
based upon discoveries made at any time before patent or
certification where patent is not required. This practice having
been uniformly followed and generally accepted for so long a time,
there should be, in my judgment, the clearest evidence of error, as
well as the strongest reasons of policy and justice controlling,
before a departure from it should be sanctioned. It has in effect
become a rule of property."
It is true that the patent has been issued in many instances
without the investigation and consideration which the public
interest requires, but if that has been done without fraud, through
unadvisedly, by officers of the government charged with the duty of
supervising and attending to the preparation and issue of such
patents, the consequence must be borne by the government until, by
further legislation, a stricter regard to their duties in that
respect can be enforced upon them. The fact remains that under the
law, the duty of determining the character of the lands granted by
Congress and stating it in instruments transferring the title of
the government to the grantees reposes in officers of the Land
Department. Until such patent is issued, defining the character of
the land granted and showing that it is nonmineral, it will not
comply with the act of Congress in which the grant before us was
made to plaintiff. The grant, even when all the acts required
Page 154 U. S. 331
of the grantees are performed, only passes a title to nonmineral
lands; but a patent issued in proper form, upon a judgment rendered
after a due examination of the subject by officers of the Land
Department charged with its preparation and issue, that the lands
were nonmineral would, unless set aside and annulled by direct
proceedings, estop the government from contending to the contrary,
and, as we have already said, in the absence of fraud in the
officers of the department, would be conclusive in subsequent
proceedings respecting the title.
The delay of the government in issuing a patent to the
plaintiff, of which great complaint is made, does not affect the
power of the company to assert in the meantime, by possessory
action (as held in
Deseret Salt Company v. Tarpey,
142 U. S. 241),
its right to lands which are in fact nonmineral. But such delay, as
well observed, cannot have the effect of entitling it to recover,
as is contended in this case, lands which it admits to be mineral.
The government cannot be reasonably expected to issue its patent,
and it is not authorized to do so, without excepting mineral lands
until it has had an opportunity to have the country, or that part
of it for which a patent is sought, sufficiently explored to
justify its declaration in the patent, which would be taken as its
determination that no mineral lands exist therein.
On the other hand, an affirmance of the judgment in this case
would enlarge the grant of the government, against its oft-repeated
exception of mineral lands, and give to the plaintiff the vast
mineral wealth of the states through which the grant passes. It
would render the plaintiff corporation imperial in its resources --
one that would far outshine "the wealth of Ormus and of Ind." And
as counsel justly observes, the same rule would apply to all our
transcontinental railroads, and give to them nearly all our mineral
lands when Congress has time and again declared that they should
have no mineral lands and that no act of Congress should be
construed to give them any, and that they "in all cases shall be
and are reserved exclusively to the United States unless otherwise
specially provided in the act or acts making the grant."
Page 154 U. S. 332
It is unnecessary to pursue this subject any further. We will
only observe that we do not notice the numerous assertions made in
the argument of the plaintiff as to what has been decided by this
Court, and what is the settled rule, in cases of railroad grants by
Congress embracing mineral lands, the correctness of which we do
not admit. The official reports will disclose wherein the errors
lie sufficiently for the attainment of accuracy of statement in
matters of judicial decision.
The plaintiff in this case, not having a patent and relying
solely upon its grant, which gives no title to the minerals within
any of its lands, shows by its complaint no cause of action for the
possession of the mineral lands claimed. The demurrer of the
defendants should have been sustained, and judgment entered thereon
in their favor.
It follows that the judgment of the circuit court in this case
must be
Reversed, and the cause remanded to that court, with
directions to sustain the demurrer of the defendants, and enter
judgment thereon in their favor, with costs.
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE GRAY and MR.
JUSTICE SHIRAS, dissenting.
I dissent from the opinion and judgment of the Court in this
case. The burden of the opinion seems to be that the magnitude of
that which is supposed to pass by the grant, as construed by
defendant in error, is so great that it cannot be believed that
Congress intended to make such a donation, and therefore rules of
decision, repeatedly affirmed, and hitherto the settled law in the
construction of such grants, are set aside and a new rule
established, whether applicable to this grant alone or also
hereafter to be considered as applicable to the whole body of law
in respect to public lands, I know not, nor is it affirmed. I
respectfully insist that the magnitude of the loss supposed to
result to the government is a mere chimera of the imagination --
ignotum pro magnifico -- and that even if it be ever so
great, it furnishes no ground for a departure from settled rules
and established law.
Page 154 U. S. 333
The grant of land to the Northern Pacific Railroad Company is
enormous. No one disputes that. But before being appalled by its
magnitude, it is fitting that a comparison be made between it and
others accepted and construed without fear of results. If it be
said that its total area is vastly in excess of that of any other
congressional grant, it must at the same time be remembered that
the length of the road in aid of whose construction it was made is
also greatly in excess of that of any other road theretofore or
since thus aided. The only fair method of comparison is that by
mile. Tested in that way, it is the same as other grants. Texas
Pacific Railroad Grant, Act of March 3, 1871, c. 122, 16 Stat. 573.
And it is only twice as large as that to the Union Pacific Railroad
and the Central Pacific Railroad, and they, in addition, were aided
by the bonds of the nation to the amount of $16,000 a mile, with an
increase, in the mountainous portions of the road, to $32,000 per
mile. I affirm that the value of the grant, unquestioned hitherto,
to the Union Pacific Railroad and the Central Pacific Railroad
Companies was greater per mile than that to the Northern Pacific
Railroad Company, and that this defendant in error would at any
time have been glad to make an exchange therefor, mile for
mile.
It is true that the country through which this proposed road was
to run was in 1864 an unknown and uninhabited region, but I deduce
therefrom a conclusion the very opposite of that drawn in the
opinion of the Court. The corporation, the recipient of this grant,
would never have moved in the construction of the road if it had
not supposed that, upon the definite location of its line, it would
receive, in accordance with the rulings of this Court, an absolute
and unquestioned title to all the lands within the limits of its
grant at that time not taken by homestead or preemption right and
not known to be mineral lands, and thus excepted from the operation
of the grant. Neither would the mortgage placed upon the road and
its land grant, as authorized by the act of Congress, have ever
successfully appealed to the confidence of the possessors of money
except upon like belief. The limits of the place lands were fixed
by the terms of the act and also the limits of the indemnity
Page 154 U. S. 334
lands. If at the time of the definite location there was no
certainty as to what lands within the place limits passed by the
grant, there was also an equal uncertainty as to what lands within
the indemnity limits could be selected, and an absolute
impossibility of making any selection because of ignorance as to
the extent of the loss in the place limits, and when it is affirmed
that at the time of the definite location there was no certainty as
to whether any lands passed by this grant, either within the place
or indemnity limits, the assertion is necessarily that the
mortgagees were invited to loan their money upon a security of the
existence of any part of which there was no certainty and could not
be any certainty until after Congress, by a subsequent act, had
appropriated money for an exploration, of which there is no hint in
the granting act. Such an assertion is equivalent to saying that
Congress invited parties to lend upon real estate security the
title to no acre of which no act of mortgagor or mortgagee could
ever certainly secure. It may be that, in the far days to come (and
thirty years have passed since the passage of the act without any
effort on the part of Congress in that direction), it shall suit
Congress to appropriate money for an exploration of the character
of these lands, and it may then be found that every quarter
section, though not known to be when the line was definitely
located and the road fully constructed, is in fact possessed of
minerals, and therefore excepted from the operation of the grant. I
respectfully submit that it ought not to be imputed to Congress
that it invited a loan on securities which might turn out to be but
apples of Sodom -- beautiful to the eyes, but ashes to the
taste.
Much is said of the possible mineral wealth within the area of
this grant, and we are told that when the government was in the
financial stress caused by the war, it is not to be supposed that
Congress would willingly throw away this enormous mineral wealth;
but surely that suggestion has not even the semblance of force.
There has been no reservation of mines or minerals to the
government. On the contrary, the entire purpose in respect to mines
has been and is expressed in the two rules: first, ordinary lands
are given to
Page 154 U. S. 335
all willing to make homesteads of them, and sold to others for
$1.25 per acre, and, when conveyed, carried all mines and minerals
beneath the surface; second, as to the ungranted and still public
lands, they are open to exploration by individuals, and the
discoverer of mines is entitled to purchase the land embracing the
mines on the payment of $5 per acre, if the mine is a lode or vein,
and $2.50 an acre if it is a placer mine.
Obviously no visions of an undiscovered "wealth of Ormus or of
Ind" out of which the debts of the war were to be paid floated
before the eyes of Congress when this legislation was pending, and
prompted the exception of mineral lands. The only purpose was to
secure to the individual explorer an opportunity to search for the
as yet undiscovered mines. But that purpose was no more significant
and no stronger than that to secure to the individual emigrant the
opportunity to acquire a homestead, or to preempt a farm, and this
right, as always held, expired when the definite location of the
road was made. Under what theory, can it be said that it was more
important and more within the thought of Congress to give time to
the individual to hunt through the country in pursuit of mines than
to the emigrant pioneer to locate a home or purchase a farm?
But it is said that Congress never meant that this vast mineral
wealth should pass to this corporation, and that the individual
must contract with that corporation for the purchase of any mine.
And yet with a strange inconsistency, as it seems to me, before the
opinion is closed, it is declared in effect that Congress meant
that when the President should issue a patent the mineral wealth,
vast as it is supposed to be, should then pass to the corporation.
If Congress, by its legislation, excluded mineral lands from the
scope of this grant, then surely no executive officer is authorized
to convey mineral lands, and even the patent of the President
passes no title thereto. The concession that a patent conveys the
mines as incident to the conveyance of the land is a concession
that the language of the grant, excluding from the operation of the
grant mineral lands, is not to be taken absolutely, and leaves
Page 154 U. S. 336
the only difference between the opinion of the Court and my own
that of the time as to which the identification of the lands as
mineral lands is to be had.
Coming to the matter of identification, the rule uniformly laid
down heretofore in the construction of all railroad grants,
including those with like exception of mineral lands, has been that
the identification takes place at the time of the definite
location. Out of the multitude of cases in which this doctrine has
been laid down, I quote from one in which this very grant to the
Northern Pacific was under consideration.
In
St. Paul & Pacific Railroad v. Northern Pacific
Railroad, 139 U. S. 1,
139 U. S. 5, it
was said:
"As seen by the terms of the third section of the act, the grant
is one
in praesenti -- that is, it purports to pass a
present title to the lands designated by alternate sections,
subject to such exceptions and reservations as may arise from sale,
grant, preemption, or other disposition previous to the time the
definite route of the road is fixed. . . ."
"This is the construction given to similar grants by this Court,
where the question has often been considered. Indeed, it is so well
settled as to be no longer open to discussion.
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S.
60;
Leavenworth, Lawrence &c. Railway v. United
States, 92 U. S. 733;
Missouri,
Kansas &c. Railway v. Kansas Pacific Railway, 97 U. S.
491;
Railroad Co. v. Baldwin, 103 U. S.
426. . . ."
"It is contended that they are qualified and restricted by the
provision of the fourth section that whenever twenty-five miles of
the road are completed in a good, substantial, and workmanlike
manner, and the commissioners appointed to examine the same have
made a report to that effect to the President, patents shall be
issued 'confirming to said company the right and title to said
lands, situated opposite to, and coterminous with, said completed
section of said road.' This provision, it is urged, is inconsistent
with the theory that a title to the lands had previously vested in
the company. We do not think so. There are many reasons why patents
should be issued upon the completion of each section of the road.
They would not only identify the lands as coterminous with
Page 154 U. S. 337
the completed section, but they would be evidence that as to
that portion of the road, the conditions of the grant had been
complied with, and that it was thus freed from any liability to
forfeiture for a disregard of them. They would also obviate the
necessity of any further evidence of the grantee's title. As deeds
of further assurance, they would thus be of great value in giving
quiet and peace to the grantee's possession. There are many
instances in the legislation of Congress where patents are
authorized to be issued to parties in further assurance of their
title, notwithstanding a previous legislative grant to them or a
legislative confirmation of a previously existing claim. The
previous grant or confirmation is in no respect impaired thereby,
or its construction affected.
See on this point
Langdeau
v. Hanes, 21 Wall. 521;
Wright v.
Roseberry, 121 U. S. 488,
121 U. S.
497."
I refer also to the case of
Deseret Salt Co. v. Tarpey,
142 U. S. 241,
142 U. S. 247.
That was a case involving the construction of the grant to the
Central Pacific Railroad Company, which grant, as the one before
us, excluded from its operation mineral lands. No patent had issued
for the particular tracts. The plaintiff claimed by lease from the
Central Pacific Railroad Company, and brought an action of
ejectment against the defendant in possession. The trial court
charged the jury that although no patent had been issued, on the
definite location of the line of the road, the title to the lands
within the place limits passed to the company unless they had been
previously sold, reserved, or otherwise disposed of by the United
States, or a preemption, homestead, swamp land, or other lawful
claim had attached to them, or they were known to be mineral lands,
or were returned as such. A judgment rendered in favor of the
plaintiff upon such an instruction was sustained by this Court, and
it was distinctly held that a full title had passed to the railroad
company. There was no pretense in that case of any ruling as to the
character of the land by the Interior Department, or any
determination by the Secretary of the Interior that this was not
mineral land. In disposing of the case, this Court said:
"By the terms of the act making the grant, the contention
Page 154 U. S. 338
of the defendant is not supported. Those terms import the
transfer of a present title, not one to be made in the future. They
are that 'there be and is hereby granted' to the company every
alternate section of the lands. No partial or limited interest is
designated, but the lands themselves are granted as they are
described by the sections mentioned. Whatever interest the United
States possessed in the lands was covered by those terms unless
they were qualified by subsequent provisions, a position to be
presently considered."
"In a great number of cases, grants containing similar terms
have been before this Court for consideration. They have always
received the same construction -- that unless the terms are
restricted by other clauses, they import a grant
in
praesenti, carrying at once the interest of the grantor in the
lands described.
Schulenberg v. Harriman, 21
Wall. 44;
Leavenworth, Lawrence & Galveston Railroad v.
United States, 92 U. S. 733."
"In
Wisconsin Central Railroad Co. v. Price County,
133 U. S.
496,
133 U. S. 507, referring to
the different acts of Congress making grants to aid in the
construction of railroads, we stated that they were similar in
their general provisions, and had been before this Court for
consideration at different times, and of the title they passed, we
said:"
"The title conferred was a present one, so as to insure the
donation for the construction of the road proposed against any
revocation by Congress, except for nonperformance of the work
within the period designated, accompanied, however, with such
restrictions upon the use and disposal of the lands as to prevent
their diversion from the purposes of the grant."
"As the sections granted were to be within a certain distance on
each side of the line of the contemplated railroad, they could not
be located until the line of the road was fixed. The grant was
therefore in the nature of a float, but when the route of the road
was definitely fixed, the sections granted became susceptible of
identification, and the title then attached as of the date of the
grant except as to such parcels as had been in the meantime, under
its provisions, appropriated to other purposes. "
Page 154 U. S. 339
"That doctrine is very clearly stated in the
Leavenworth case, cited above, where the language of the
grant was identical with that of the one under consideration, and
the Court said:"
"'There be and is hereby granted' are words of absolute
donation, and import a grant
in praesenti. This Court has
held that they can have no other meaning, and the Land Department,
on this interpretation of them, has uniformly administered every
previous similar grant. They vest a present title in the State of
Kansas (the grantee named), though a survey of the lands and a
location of the road are necessary to give precision to it, and
attach it to any particular tract. The grant then becomes certain,
and, by relation, has the same effect upon the selected parcels as
if it had specifically described them."
"The terms used in the granting clause of the act of Congress,
and the interpretation thus given to them, exclude the idea that
they are to be treated as words of contract or promise, rather
than, as they naturally import, as words indicating an immediate
transfer of interest. The title transferred is a legal title, as
distinguished from an equitable or inchoate interest."
It is a misconstruction of the decision to say that the court
only held that an action could be maintained for the possession of
lands not mineral, for it was neither alleged nor proved that the
lands were not mineral, but simply that at the date of the definite
location, they were not known to be mineral. The same allegation
and proof could have been made in this case if the action had been
brought two years before the discovery of the mineral, and four
years after the definite location, and the Court then, under the
authority of the
Tarpey case, would have been compelled to
sustain a judgment in favor of the company, declaring it the owner
of the land, while now it enters the very opposite judgment -- that
the company is not the owner. So, in the
Tarpey case, if,
the day after the opinion of this Court had been announced, some
enterprising explorer had discovered a mine of value within the
limits of the tract in controversy in that case, following this
opinion, the Court would have been compelled to hold that
Page 154 U. S. 340
the company had no title, never had had any title, although it
had affirmed a judgment declaring that it had the title. It is
impossible to uphold such a difference of ruling on anything
equivalent to a condition subsequent, for, as held in
Schulenberg v.
Harriman, 21 Wall. 44, no one can take advantage of
the nonperformance of such a condition but the grantor or his heirs
or successors, and the government has taken no action in respect to
the title to this tract since the discovery of the mineral.
These decisions could be supplemented by a score and more in
which the same doctrine has been affirmed and reaffirmed until, as
said in the quotation first above made, "it is so well settled as
to be no longer open to discussion." All these authorities are in
effect wholly overthrown by this decision, for there is no
identification of the lands passing by the grant unless it is
known, and can be known at the time what lands pass. Take any
particular mile of the road. On either side of the line as located,
there are twenty alternate sections within the place limits. By the
rule now laid down, the title to no one of these twenty sections
passes to the company, because it is not known absolutely which are
mineral lands. So far as known, none may be mineral, and yet, as in
this case before us, six years after that line of definite
location, an exploration develops the fact of minerals, and then it
is declared that the title did not pass. When you simply say, as
the Court does in this opinion, that out of those twenty sections
there shall pass the title to such lands as shall thereafter be
found or be determined by the Secretary of the Interior to be
nonmineral lands, you say in effect that there is no identification
of a single tract. This Court has hitherto said that when the line
of definite location was fixed, the lands granted were identified.
That means, if it means anything, that the particular tracts which
passed by the grant were disclosed. Now it is said that they are
not disclosed, and cannot be identified as passing by the grant
until it shall be affirmatively proved that they do not contain
mines, or the Secretary of the Interior has determined that they
are not mineral lands. There is therefore at the time no
identification of the particular lands which
Page 154 U. S. 341
pass, as has always heretofore been declared. It is true, as
suggested, that it is no uncommon thing to make a grant of lands
with a reservation of mines or minerals, and if such were the
reservation in this case, there would be no question as to the
matter of identification. But there is in this case no reservation
of mines or minerals. No land passes with a reservation of anything
underneath the surface. There is simply an exception of mineral
lands from the operation of the grant, and there has got to be
something to separate and distinguish one class of lands, to-wit,
mineral lands, from the other nonmineral lands before there is any
identification as to any lands. So, unless there is that which, at
the time of the definite location, distinguishes lands nonmineral
from lands mineral, there is no identification of any particular
tract as passing under this grant.
In the case of
Davis v. Weibbold, 139 U.
S. 507,
139 U. S. 524,
this Court said:
"It would seem from this uniform construction of that department
of the government specially entrusted with supervision of
proceedings required for the alienation of the public lands,
including those that embrace minerals, and also of the courts of
the mining states, federal and state, whose attention has been
called to the subject that the exception of mineral lands from
grant in the acts of Congress should be considered to apply only to
such lands as were, at the time of the grant, known to be so
valuable for their minerals as to justify expenditure for their
extraction."
And again, on page
139 U. S.
519:
"The exceptions of mineral lands from preemption and settlement,
and from grants to states for universities and schools, for the
construction of public buildings and in aid of railroads and other
works of internal improvements, are not held to 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, and known to be so at the date of
the grant."
It is probably unnecessary, in view of this declaration as to
the uniform construction by the Land Department, to refer to
Page 154 U. S. 342
any specific rulings therein, and yet the following
illustrations may not be amiss: by the Act of March 3, 1853, 10
Stat. 244, it was provided (sec. 6)
"that all the public lands in the State of California, whether
surveyed or unsurveyed, . . . excepting also the lands claimed
under any foreign grant or title, and the mineral lands, shall be
subject to the preemption laws of fourth September, 1841, with all
the exceptions, conditions, and limitations therein, except as is
herein otherwise provided."
In a circular of instructions issued to the registers and
receivers in California, October 12, 1853, construing this act,
Commissioner Wilson defines the above exception of "mineral lands"
as "lands on which are situated any known salines or mines." 1
Lester, Land Laws, p. 698.
In
State v. Poley & Thomas, 4 Copp's L.O., this
question, as stated by Secretary Schurz, was presented, arising
under the congressional grant of school lands to the State of
California:
"Did the title to lands in said sections vest in the state upon
survey if their mineral character was unknown at the time and the
same were regarded by the officers of the government as ordinary
public lands, not reserved or otherwise appropriated but subject to
disposal under the general laws of the United States?"
And this was his answer:
"In compliance with the doctrine established by the courts, it
must, I think, be held that the title vested in the state at the
date of the survey, when the land was not known to be mineral, or
was not treated as such by the government. If, following the
doctrines of the courts, the grant of school lands takes effect at
the date of survey, can the character of the land, subsequently
determined, change or affect said title? If it can, for how long a
period can such change be affected? If for three years, why not for
ten or fifty, or after the title derived from the state has been
transmitted through numerous grantees? For lands confessedly not
mineral at the date of survey may, many years thereafter, be
ascertained, through the improvements in mining operations, to be
valuable as mineral lands. To maintain such a doctrine might result
in
Page 154 U. S. 343
placing in jeopardy the title held by grantees to all the school
lands in California, and could only be authorized by the most
positive and clearly expressed provisions of law. In my opinion,
there is nothing in the act which can thus be interpreted. I must
therefore hold that the discovery of the mineral character of the
land in sections 16 and 36 subsequent to survey does not defeat the
title of the state to the same as school lands."
Again, the Land Department can acquire no knowledge as to
whether these lands are mineral or not except by exploration, and
that requires the labor of explorers, and the payment of their
compensation therefor. That Congress never contemplated that there
should be any such exploration as a condition of passage of title
is evident from the fact that thirty years have passed since the
date of this grant, thirty-two years since the date of the grant to
the Union Pacific and Central Pacific Railroad Companies, which
also excluded mineral lands, and never has an act been passed or
even, so far as we are advised, a bill offered in Congress
contemplating the appropriation of a single dollar for such an
exploration. Aside from an exploration conducted by the government
at its expense, the only way that knowledge could be acquired would
be through the personal efforts of individual explorers. Was it
contemplated by this act that the Secretary of the Interior should
have authority to wait so long as he saw fit for the results of
these individual explorations before finding and determining that
any particular tract was mineral or not? Assuredly, a suggestion of
such a purpose on the part of Congress would border closely on
disrespect to the intelligence and integrity of that body.
But Congress knew that provision had already been made for
ascertaining the character of these lands. Rev.Stat. section 2395
contains these provisions:
"Seventh. Every surveyor shall note in his field book the true
situations of all mines, salt licks, salt springs, and mill seats
which come to his knowledge, all watercourses over which the line
he runs may pass, and also the quality of the lands. "
Page 154 U. S. 344
"Eighth. These field books shall be returned to the surveyor
general, who shall cause therefrom a description of the whole lands
surveyed to be made out and transmitted to the officers who may
superintend the sales. He shall also cause a fair plat to be made
of the townships and fractional parts of townships contained in the
lands, describing the subdivisions thereof and the marks of the
corners. This plat shall be recorded in books to be kept for that
purpose, and a copy thereof shall be kept open at the surveyor
general's office for public information, and other copies shall be
sent to the places of the sale, and to the General Land
Office."
By the Act of July 26, 1866, c. 262, 14 Stat. 251, the mineral
lands of the public domain were declared to be free and open to
exploration or occupation, and provision was made for the entry and
patenting of a vein or lode of quartz or other rock in place,
bearing gold, silver, cinnabar, or copper.
In a circular of instructions issued under this act January 14,
1867, the commissioner says of section 11:
"In order to enable the department properly to give effect to
this section of the law, you will cause your deputy surveyors to
describe in their field notes of surveys, in addition to the data
required to be noted in the printed manual of surveying
instructions, on pages 17 and 18, the agricultural lands, and
represent the same on township plats by the designation of
'Agricultural Lands.'"
2 Lester's Land Laws 317.
It is true that such survey and report only give what are the
surface indications of the tracts, but any other examination and
exploration for discovering minerals beneath the surface require,
as anyone can see, a large expenditure of money, and it may well be
believed that Congress, knowing that the surveys which were already
provided for would disclose the character of the lands so far as
they could be disclosed by the surface appearances, meant that the
field books returned to the Land Department, containing that
information, should be that which should guide in the
identification of the tracts at the time of the definite location,
as mineral or not mineral.
Again, the section by which the land grant was made to the
Page 154 U. S. 345
Northern Pacific Railroad Company, after defining the place
limits of the grant, and providing for the definite location of the
line of the road, contained this clause (13 Stat. p. 368):
"And whenever, prior to said time, any of said sections or parts
of sections shall have been granted, sold, reserved, occupied by
homestead settlers, or preempted, or otherwise disposed of, other
lands shall be selected by said company in lieu thereof under the
direction of the Secretary of the Interior, in alternate sections,
and designated by odd numbers, not more than ten miles beyond the
limits of said alternate sections."
But unless at the time of that definite location there was an
identification of the particular lands within the place limits
which passed, how could there be any selection in the indemnity
limits? Take this particular tract in controversy before us. If,
after the definite location, the company had applied to the
secretary for a selection of land within the indemnity limits in
lieu of this tract, would not the secretary have been compelled to
refuse such selection on the ground that so far as was known, this
was not mineral land, and therefore passed by the grant? And if
now, after the lapse of six years, mineral is discovered, and it is
adjudged that the title does not pass, is it not possible -- nay,
probable -- that when selection is sought of lands within the
indemnity limits, it will be found that all have been taken by
homestead or preemption? Or if not, and a selection is made of any
particular tract within those limits, will not the land thus
selected, and supposed to pass to the company, come within the rule
here announced -- that if before the patent shall issue, mines be
discovered, it must be adjudged mineral land and therefore not
passing by the selection? In other words, the title to no lands
within the place limits passes, because it is unknown whether they
are mineral or not, and no selection can be made within the
indemnity limits because it is not known how much the deficiency
is.
Again, in section 4 of the same act, it is provided that after
the completion of twenty-five consecutive miles of road,
commissioners shall be appointed by the President to examine as
Page 154 U. S. 346
to whether the road has been completed in a substantial and
workmanlike manner, and if they make a favorable report,
"patents of lands as aforesaid shall be issued to said company
confirming to said company the right and title to said lands
situated opposite to and coterminous with said completed section of
said road, and from time to time, whenever twenty-five additional
consecutive miles shall have been constructed, completed, and in
readiness as aforesaid, and verified by said commissioners to the
President of the United States, then patents shall be issued to
said company conveying the additional sections of land as
aforesaid, and so on as fast as every twenty-five miles of said
road is completed as aforesaid."
If language can make anything plain, it is that when the
commissioners have reported favorably as to the construction of any
twenty-five consecutive miles of road, the right to a patent
exists. It was said in
Stark v.
Starrs, 6 Wall. 402,
73 U. S.
418:
"The right to a patent, once vested, is treated by the
government, when dealing with the public lands, as equivalent to a
patent issued. When in fact the patent does issue, it relates back
to the inception of the right of the patentee so far as it may be
necessary to cut off intervening claimants."
When this case was argued before us at the last term, it was
conceded by the Attorney General that if it was not known that the
lands were mineral at the time of that report, the title then
passed. Such a concession on the part of the government, if now
recognized, would compel an affirmance of this judgment, for at the
time the commissioners made report as to the twenty-five
consecutive miles adjacent to this tract, no mineral had been
discovered, and, so far as known, the land was not mineral. But the
Court, in this opinion, repudiates such concession and holds that
the matter of determination remains open until the very issue of
the patent.
Again, by a resolution of May 31, 1870, 16 Stat. 378, the
Northern Pacific Railroad Company was authorized to issue its bonds
secured by mortgage upon its entire property. Did Congress mean to
imply that at that time no specific tracts passed by the mortgage,
but only such as might thereafter be
Page 154 U. S. 347
determined by the Land Department to be nonmineral? That
resolution contained also this provision:
"Provided, that all lands hereby granted to said company which
shall not be sold or disposed of or remain subject to the mortgage
by this act authorized at the expiration of five years after the
completion of the entire road, shall be subject to settlement and
preemption like other lands at a price to be paid to said company
not exceeding two dollars and fifty cents per acre."
How could the company sell any particular tract unless at the
time the purchaser knew that the title of the company was perfect?
And if the company had failed to place its mortgage, as it most
certainly would have failed if the construction now contended for
had been believed to be the true construction of this grant, then,
by the terms of this provision, at the end of five years from the
completion of the road, any tract would be open to settlement and
preemption, as are the public lands of the government.
Again, it is abundantly well settled that lands the title to
which remain in the government are not subject to taxation. Can it
be that Congress contemplated that the territories and states which
should be organized along the line of this transcontinental highway
should not be able to tax any alternate sections within the place
limits of this grant until such time as it should appropriate money
for an exploration as to their character? Take this particular
tract for illustration: in 1872, the line of definite location was
fixed. Apparently it was within the terms of the grant, but it is
now adjudged that no title passed to the Northern Pacific, but
remained in the government. Was the land subject to taxation during
the six years prior to the discovery of the mines? Will it be said
that Congress intended that the Northern Pacific should pay the
taxes on all the lands so situated, taking the chances in the
future of some of them proving to be nonmineral? Would such
injustice be imputed to Congress, even as against a corporation?
Suppose the Northern Pacific did not pay, and some party purchased
the land at a tax sale. Has he lost his money because the land now
proves to be mineral lands,
Page 154 U. S. 348
and therefore still the property of the government? Or if the
state is under obligation to refund the money thus improperly
collected in the way of taxes, what then results? The state or
county has regulated its tax levy and its expenditures upon the
supposition that these lands were subject to taxation. If the title
has not passed from the government, they are not taxable, and a new
burden must be cast upon the property of individuals within the
territorial limits to make good the unexpected deficiency of public
funds.
It is well known in the history of this and similar land grants
that there was an earnest effort to relieve many of the lands from
the burdens of state taxation, an effort which brought to this
Court the cases of
Kansas Pacific Railway v.
Prescott, 16 Wall. 603, and
Union
Pacific Railroad v. McShane, 22 Wall. 444. This
litigation was carried on, on the part of the railroad companies,
under the superintendence and direction of Hon. John P. Usher, who
was Secretary of the Interior at the time of the passage of these
land grant acts, than whom, perhaps, no one was more familiar with
the land laws of the United States, and during all that litigation
there was not even a suggestion that the absolute transfer of the
title at the time of the definite location was, as to any
particular tract, delayed by the question, thereafter to be
determined, as to whether the lands were mineral or not.
Turning to legislation other than that respecting railroad land
grants, we find by section 2258 of the Revised Statutes that
preemptions are not allowed of "lands on which are situated any
known salines or mines." In section 2302, in reference to
homesteads, it is enacted: "Nor shall any mineral lands be liable
to entry and settlement under its provisions." Section 2392, in
reference to town sites, reads:
"No title shall be acquired under the foregoing provisions of
this chapter to any mine of gold, silver, cinnabar, or copper, or
to any valid mining claim or possession held under existing
laws."
In one of these three clauses, the word "known" is used, but not
in the others. Is thereby any difference intended as to what shall
be excepted from the scope of the authority to acquire lands? That
in reference to town sites, as heretofore decided
Page 154 U. S. 349
in
Davis v. Weibbold, 139 U. S. 507,
includes only known mines.
I deem it unnecessary to pursue this discussion further. Many
other considerations of equal significance might be adduced. It is
enough to say in conclusion that the uniform and settled rule of
decision heretofore has been that identification of the particular
tracts which pass under a grant was complete at the time of the
definite location of the line of the road. Congress, with a
knowledge of that frequent ruling, has never by any act directed a
change. It is to be presumed that the legislation of the various
states has been cast upon that as the law of the land. To now
overthrow that and establish a new rule not merely unsettles the
question of title to the lands within this vast area, but it may
produce complications which we do not now perceive in the rights of
individuals and counties, and even of the states, along the line of
this road. If ever there was a case in which the rule
stare
decisis should prevail, this is one.
I therefore dissent from the opinion and judgment in this case,
and am authorized to say that MR. JUSTICE GRAY and MR. JUSTICE
SHIRAS concur in this dissent.