The new North-west., 1890-03-07
OPINION OF JUDGE SAWYER.
The Mneta! Laad Questions Discussed.


ion of Judge Sawyer, Of the United States
Circuit Court, Northern District of Cali
fornia, in the case Of Francocur VS.. New
house, rendered Dec. 9, 1885, involving the
construction of the Central Pacific Rail |
road land grant in relation to lands found |
to contain mineral after the claim of the |
railroad company attached. The language !
of the grant to the Central Pacific, and the |
exceptions rs to mineral lands is almost |
identically the same as used in the North
ern Pacific grant.
The facts in the case are briefly these:
The plaintiff bought the land from the
Central Pacific Railroad Company and
brought the action to recover possession.
The land was part Of an odd-numbcrcd
section and within the tcn-milc limit of the
grant made to the company Date Of grant,
July 1, 1862; surveyed in 1866 and survey
filed in 1867. That by the survey the land
was determined TO be agricultural lands
and not mineral; that at the date of the
passage Of the act, and when the line of
the railroad was fixed and when it was
constructed, no part Of the land was known
mineral land, or returned or denomi-
mated rs mineral land. That in 1888 a
vein of quartz bearing gold. in paying
quantities. was discovered upon the land;
that April 20, 1885, an application for Il
patent was filed, and on May 5, 1887, the
Land Department issued a mineral patent
for the land to the Eagle Gold Mining
| Company. No patent had yet issued to
the railroad company. After stating the
facts the court says it has been SO often
decided that the grant to the railroad com
pany under this and similar acts is grant
IN present., passing and vesting present
title. only to be defeated by Il failure TO
perform the conditions subsequent, and
suitable judicial proceedings on the part
of the United States to forfeit them, that it
| is only necessary to cite the authorities,
| without further discussing the question.
| There be and is hereby srantcd,' are
| words of absolute donation, and import Il
grant IN present.. They have no other
meaning. The equitable and legal title to
the land passed by the Legislative grant IN
prdsehti, in such sense that au action Of
| ejectmcnt could be maintained upon it
that the patent provided for was not neces-
sary to pass the title, but was only a con
venient investment Of evidencc--a Il title,
therefore, vested by the grant. ........m
"The next question is, did the land in
question pass, by the grant of 1862, per
fectod in lS66-GT, in which Il gold ming
was discovered in 1888, twentyone years
after the grant attached by the filing Of a
plat Of the general route OF the railroad,
and the withdrawal Of the lands in pursu-
ancc Of tho statute, by the Secretary Of the
Interior, and more than II years after the
completion Of the road and its acceptance
by the President, and more than 16 years
after the final survey and report of the
lands as agricultural and not mincrals
The parties to this grant, both the United
States and the grantee, must be presumed
to have contemplated 4 grant in view Of
the condition of the lands as they were
known, or appeared to be, at the time the
grant took effect, In the exception Of
mineral lands from the grant, Congress
must have meant not only lands mineral in
fact, but lands known to be mineral, or AT
most, such as were, apparently, mineral,
and generally recognized as such.
In granting the public lands, G0agres4
Daust be presumed IL deal NTH them IN rieir
# tie coadHions rs Mey ore hltowH, or sup
pascal tu be, at tie tine. Exceptions must
be presumed 10 refer to matters that are
iFHdt1ynppdftnt 1tpon iAsptctton. Any other
would be altogether too indefinite to be
raised. The conditions constituting the
exception ought, certainly, to be ascer-
tainablc at the time the grant takes effect,
or they ought not TO be operative; other
wise the greatest confusion and inconven-
encc, public and private, must necessarily
result. The grant should point out what
is granted in such certain terms that the
grantee may be able TO ascertain by nspec-
tion and know at the time the location is
definitely fixed, and it becomes operative,
what specific tracts of land are granted,
and what are excepted from the grant
These words mineral lands used in
the act, must be construed in practical
sense, and construed with reference to
| lnclT present KNOWN, OF, AL lciSl, eSlutnllE
apparent conditions.
"Thosc who make or take subsequent
grants must see that there is something to
grant. 1t is not enough to know that the
lands contain minerals at the date Of the
issue of the patent, in order to grant them
as mineral lands. 1t must be known also
that there has been no prior divestment OF
title, am satisfied that the lands ought
not only to be mineral in fact, but also to
be known as mineral, or there should be
satisfactory reason to believe them to be
such, at the date when the grant takes
effect, in order to fall within the eyccp-
ton of mineral lands in such sense as to
defeat the grant. And this is evidently the
view of the Supreme Court, as there is no
case, SO far as | am aware, wherein that
cral lands in these grants unless they were
known to be mineral at the time of the
grant"
Quotations from decisions Of the United
States Supreme Court are then made sus-
tanning this view.
The court thereupon proceeds to the con
sideration OF the patent issued to the Eagle
Gold Mining Company, and held that the
land haring already been granted, TIC De
partmeat had no Jurisdiction to dispose Of
them, and the patent was therefore void
citing from decision of the Supreme
Court as follows: "If they never were pub,
| lie property, or had previously been disposed