Helena weekly herald., 1889-11-07

and is grant sin present. KAT
vs.. K. P. Railroad company, 81 U. S. Su
preme Court Reports 497 St Joe & Denver
vs.. Baldwin, 1O3 U. S. Supreme Court Re
ports 426. And the exception of mineral
lands" is only OF such lands as were then
known to be mineral. Deffenbach VS..
Hawk. 115 U. S. Supreme Court Reports 392
8. Ii this Is not 30, and the grant is for
lands found to be unreserved, or not min
eral at the date of definite location, then
said entry should not be approved, because
the land was not definitely located and
map filed, July 6, 1882, at which time the
| cOmpany's right rested. Van Wick VS..
Knevals. 106 U. S. Supreme Court Report,
800. NJ, K. and T. vs. K. P. (supra)
Whereas, the discovery and location of the
land as mineral was not until July ID,
1885.
A. But further, section four of the COM
pany's charter provides that when twenty
five consecutive miles of the road is COM
pleted and accepted by the president, on
the report of duly appointed commissioners,
patents for the lands granted shall be
issued to the company, confirming to the
company the right and title to said land,
situated opposite and co-terminus with
said coupled section. The road opposite
township 10 north, range west, was COM
pleted and duly accepted by the president
September Z, 1883, which was also prior to
the discovery therein of any mineral.
1t thus appears that the land was not
only segregated and returned by the sur
veyor general as agricultural land; but also
that no discovery of mineral was made
therein until long after the company's
rights had vested by the grant, the definite
location Of the road, and its construction
and acceptance by the president.
By his acceptance the company became
entitled to the patents and the rights to
patent to land, once vested, is treated by
the government, when dealing with public
lands, as equivalent to a patent issued.
When in fact the patent does issue it re-
lates back to the inception of the right of
the patentee, as far as may be necessary to
cut IF intervening claims. Stark vs. Starr,
Wal. 4O2, Lissner VS. Price, IL How. SO,
Gibson vs.. Choteau, 13 Wal 92 Shepley vs..
Cowan, 81 U. s. Supreme Court Reports,
$50.
1t must therefore follow that this being
known and denominated as agricultural
land, when the compapy's right TO its
patent vested, that right cannot be taken
away because of the delay of the govern
ment in issuing said patent and the subse-
quent discovery of mineral.
If at the time the cOmpany's right vests,
the land has been returned by the surveys
as agricultural, and it is 80 known, it passes
to the grant, and no subsequent discovery
of mineral therein can deprive the company
of its rights
The vesting of the company's rights is
equivalent to an entry of the land by an
individual, and the decision of the Supreme
Court in the case of Deffenbach vs. Hauke
(supra) applies with full force.
This decision is approvingly cited by
the department in Samuel vs.. Spong. l..
D., 1913 and Nicholas Abercrombie, 6 l.
D., 1893, and by the court in Colorado Coal
and Iron Company VS.. q. s., 7O3. New
discoveries after the sale, by which the
land becomes profitable to work as mine,
cannot effect the title, as it passed at the
time of the SALE" We therefore say, in
conclusion, that at least the completion