Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-12-19

are devoted by the Trustees 10 the redemption
of the bonds. Is this security to be impaired
or destroyed by taking from ne operation of
the grant all lands in which at any future
time gold other valuable metals may De
discovered IF So all Of the lands may sooner
or later revert to the United states and these
bondhoiGeTs and those who in cd faith have
purchased the lands OF the company without
being aware of the mines secluded in their
lower depths, win be largely injured.
These WORKS mineral LANDS" used in the
Act must be construed in a practical sense
as practical men would use them in contract
ing 8 out them-must be construed with RET
erence 10 their present known, or at least oh
Yi9usiy apparent, condition
I had occasion to express my views in a gen
eral way upon this subject III Cowell Us. Ian
mars GO Saw. 246l. In that case, it is said,
"by tie words mineral lands must be under
stood lands known 10 be SUCH or which there is
satisfactory reason to believe are such at the
time OF the grant or patent" In til = Sc, it
was not necessary TO go behind the date of the
patent which was issued to the company in ac-
cordance with and in pursuance of the grant,
and not TO a trespasser in opposition TO the
graft, as IN this Instance.
Those who make or take subsequent grants
must see that there is something to grant. II is
not enough 10 know that the lands contain
minerals, at the date Of the issue of the patent,
in order ID grant them as mineral lands. 1t
must be snown. also, that there has been no
prior Investment of title. | am satisfied that
lauds ought not only 10 be mineral in fact but
also 10 be known as mineral, or there should be
at the date when the grant takes effect, in order
to fail within he exception of mineral lands in
such sense as 10 defeat the grant. And this is,
evidently, the view of the Supreme Court, as
there is no case, 50 far as am aware, wherein
that Court has sustained an exception of ''min-
eral lands in these grants unless they were
known To be mineral at the tine OF the grant.
This point is very fully considered by the
Court IN Colorado Coal Company vs. United
States (12S U. s., 326-27) Says the Court in that
case, quoting from prior decision, ''ae say land
KNOW az Tie time 10 be valuable for its min
erals, as there are vast tracts OF public land in
which minerals of different kinds are found,
but not in such quantities as to justify ex-
penditure IN tie effort to extract them. 1t is
not to such land that the term mineral in
the sense of the ftatute is appl cable.
We also say lands. known at the time of their
sale TO be thus valuable. in order to avoid any
possible conclusion against the validity OF title
ieh may be issued for other kinds of land in
which years aiterward rich deposits of mineral
may De disaoVe:e ed. 1t is quite possible that
lanes settled upon, as luitable only tor agri
cultural purposes. entered by the settler and
patented by the Government under the pre-
empti II laws, may be found years after the rat
ent has issued to contain valuable minerals. In
deed this has often happened We therefore,
use the term known TO be valuable at the time
of sale 10 prevent any doubt being cast upon IL
tie to lands afterwards found to be different in
their mineral character from what was sup
posed when the entry of them was made and
the patent issued (l23 U. S. 327) This was
but affirming similar views before expressed in
Detfenbach VS. Hawke Q15 U. s., 404). In this
case the Supreme Court also affirmed the view
of the Circuit Court expressed in Cowell VS..
hammers, supra, that an exception inserted IL
a patent, in express terms by the Secretary of
the Interior not required Or authorized by the
statutes is void.
Now, in this case, according TO the allegations
of the complaint after the grant mad been
made, and all the provisions fully performed by
the grantee, the road accepted by the President.
and the title iIrevocably vested in the grantee,
and be ore there was any authority at all to sur
vey mineral lands, as III the case of Cowell vs.
hammers, the township and section including
the -ands in question were surveyed as agri-
cultural lands and so returned and represented
TO the Land Office and they were so regarded
until the discovery of gold-bearing quartz
patent was refused the railroad com.
pany, and Issued to defendants grantor. This
discovery, in our judgment, was too late. There
was at the date of the legislative grant and |
for many years afterwards, nothing appearing
in the nature of valid exception to take the |
premises in controversy out OF the operation OF
he grant. The Department, in issuing the |
patent to defendants grantOr instead of the rail- |
road company, seems to have acted, in view of |
the condition of things as they appeared after |
the discovery of the gold bearing quartz in 1853,
and not as they appeared and were known at |
the time of the max ng Of the Congressional |
grant, The performance of the conditions OF the |
grant by the grantee and the subsequent survey |
maze by the Government in 1866 1867 as agrl- |
cultural lands.
1t is further objected that the patent thus is |
sued TO defendants grantor cannot be col |
lateraly attacked in an action Of ejectment; |
that it can only be impsached by a direct pro |
Gee ding in equity to declare it void. or control
title passed by it for the benefit of the
party equitSbly entitled his it appears to US,
would have been the better course, and at first |
we were disposed to think it was the only |
course. But, upon further consideration and |
examination of the authorities, we think the |
a does rot tall within that rule. In recogniz-
ing the rule Insisted upon IN proper case, the |
Supreme Court, in Smelling Company VS.. Kemp |
Q04 U. S GID, adds: ''Uf course, when we |
speak of the conclusive presumptions attend
ing patent for lands. we assume that it was is
sued in a case where the Department had juris-
dlction to act and execute it-that is to say in |
case where lands belonged to the United states |
and provision had b. en- made by law for their
previously been disposed of, or if Congress had |
made no revision Tor their sale, or had reserved
them, the Department would have no jurisdic-
ton to transfer them, aud It's attempted convey
ance of them would be imperative and void, no
matter with what seeming regul 4rity the forms
ri law may have been observed. The acti n of
the Department would in that event be like that
Of any special tribunal not having jurisdiction of
d case which it had assumed 10 decide. Matters
Of this kind disclosing a want of jurisdiction
may be considered by Il Court of law. III such
cases the objection to the patent reaches beyond
the seton OF the special tribunal, and goes 10
the existence of a subject upon which IL was
TO act"
And in Wright vs. Rosebery Q2I U. S., 513) the
Supreme Court quote and approve the foregoing,
aud further quote and approve another pa sage,
Il. follows: "a patent may be collsterally i'm
pesched in any action, and its operation as a
defeated by showing that the De-
had no Jurisdiction to dispose of the |
lancs: that is that the law did not provide for
selling them, or that they had been reserved
from sale, or Ged Gated TO special purposes, OF
had been previously transferred 20 Others. III |
any of these particulars the judg |
ment of the Department upon matters properly |
before is not assaiable, is the regularity OF
its proceedings called into question:; but its au-
have existed" They cite other authorities to
sustain this view. Now these observations cover
the case The point was ais directly decided |
in olan VS.. Carr (l25 U. s, 6lS).
These lands, under the allegation of the COM
plant "had previously been disposed of" by |
10 dispose of them TO somebody else as there was |
nothing to dispose OF. And the Court saws: "a |
patent may BE- collaterallg impeached in any |
q II N and its operation conve vance defeated,
by showing that the Department mad no jurisdic |
ton 10 dispose of the lands. Or that |
they had been previously transferred to |
others" That is this case. Had the Depart |
ment issued a prior patent to the railroad COM
pany and then one to the defendants grantor |
there can be no doubt that it would be the duty |
of the Court in this case to determine which |
carried the title If the first patent was valid,
there would be nothing upon which the second |
could operate. So in this case if the Congress |
siOnal grant was vslid and operative, there was |
nothing upon which the patent to the defend |
ants grantor could operate, AID it is competent |
for the Court in this case 10 ascertain which |
grant took the land
Upon the views expressed, the demurrer must |
he Oyerruled and il is so ordered upon the usual |
terms SAWYER. judge.
SABIN, District Judge. |