, 1890-04-10
in accordance with the provisions of this


cupied, unappropriated public lands, of
the United states, whether surveyed or
unsnrNcNcd. The question therefore
arises, Were these lands public LANDS
OF the United States of the character
contemplated by congress In the act of
Arril o ls72, authorizing the issuance
OF this scrip2 The words public lands
ot tho United states are used TO desig'
nate such lands ~ are subject to sale
and disposal under the general land
laws, ahG do not include all lands To
which the United States may have legal
title, or all lands TINT may be granted or
disposed OF 10y the United States. These
words have well defined meaning, ana
all grants Of "public lands are made by
tho government and accepted by the
grntltce with n full knowledge Of what
lands are intended To be thereby con
yeycd.
In tho caso Of Newhnll VS.. Sanger
tO2 u. :. 7GD the supreme court SAYS;
The words public lands are hobitually
used IN Our legislation to describe such
~ are subject to sale or other disposal
under general Jaws.
The same principle was recognized In
the case of Wilcox VS.. Jackson tl3 Peters
i1sp and in Leavcnworth. Lawrence Il
Galveston H. ". vs. United states tO2
U. ,, 75) wherein the court SAYS: THAT
wherever tract of land shall have been
once legally appropriated TO any pur.
pose, from that moment the land thus
appropriated becomes severed from the
mass Of public lands Also by ScCrc.
taty Lamar In the case of Kansas VS..
United States 60 l.. ID. 7l2D, in which he
held that the act providing for the pay.
Went to Kansas of per cent. of the net
proceeds resulting from the sale of lands
referred TO public lands, and did not en-.
brace sales made of Indian lands by the
government as trustee.
80 IN the casc of the grant 20 tho state
ol ,alioruta of the sixteenth and thirty.
sixth sections of public lands for school
purposes, In which no express rsserya.
ton was made of mineral lands; but
thc court held tina, the grant was not
intended to cover such lands, because
they were by the settled policy of the
government excluded from all grants;
Mining Company W.. Consolidated
Mining Company (lO2 u. 5. 1911
In the case of Irvine vs.. Narshall GO
How 56D the supreme court said;
''lt can not be denied that all the
lands in the territories not ap-
propriated by competent authority
before they were acquired arc
in tho first instance the exclusive
property of the United States, to he dis
posed OF to such persons at such times,
and in such modes, and by such titles
as the government may deem most adj
vantngcous to tho public use, or in other
respects most polite. This right has
been uniformly reserved by solemn COM
pacls upon the admission of new states,
und has been heretofore recognized and
scrupulously respected by sovereign
states within which large portions of
public lands have been comprised, and
within which much of those lands is
sull remaining"
10 has never been questioned that a
state upon Its admission into the Union
i'm modiately acquires title to and juris-
dlctiun over all lands within its limits
below ordinary high water mark. This
title aud control Is not acquired by mere
assertion of right and ownership, but by
virtue OF its sovereignty. There was no
ression OF these lands TO the state, and
none was necessary. at properly be
longs to the states by virtue of their in
heTent sovereignty, and the United
states has wisely abstained from OK
tending uf 1t could ektond) its surveys
and grants beyond the limits of high
watcr.' Barney vs.. keokuk (oi q. S.
33S)
Therefore, when the court says that
upon the admission OF n new state the
government reserved TO itself by solemn
compact .as sole right to dispose of all
the public lands within the limits OF the
state, tits evident that the words pub
lie lands" only referred to lands subject
to disposal under the general land laws,
and did not include the lands between
hi gh and low water mark. lfthesc lands
are included in the term public lands, 4"
tho government would have the right to
dispose of them 10y the terms of the
compact, because no public lands" are
excepted from tile operation Oft
Upon tue admission OF new state in
to the Union, II becomes entitled to all
the rights Of sovereignty and jurisdic-
ton as 10 the soil Of nhvigablc waters as
tho older states. and Mother the right
OF the United States to the public lands
nor the power conferred upon congress
To make laws and regulations Tor the
sale thereof, enables the general govern
mont To grant the shores and bed of such
waters within the limits of new state
after its admission into tho Union
Gould on Law of Waters, p. 30.
In Pollard VS.. Hagen, supra, the court
say that; when Alabama was admit
led into the Union on an equal footing
with the original states, she succeeded
to all the rights of sovereignty, jurisdic-
ton and eminent domain which Georgia
possessed at the date of the cession, ex-
Ccpt so tar as this right was diminished
by the public land S remaining In the
possession and under the control OF tho
United States. Nothing re.
maincd to the United States, according
to the terms OF the agreement, but the
public lands" (Page 223,)
1t is evident that the court did not
consider that public lands" embraced
tide lands" because the latter class of
lands were subject to the jurisdiction
to dispose of "tho public lands" was left
to the general government.
The general onclusions arrived at by
the court are:
"First-The shores of navigablc
waters, and the soils under them, were
not granted by the constitution TO the
United States, but were reserved to the
states respectively.
"Secondly-Tho new states have the
same rights, sovereignty and jurisdic.
ton over this subject as the original
states.
"Ihirdlv--The right of the United
States to the public lands and the power
of congress to make all needfil rules
and regulations for the sale and dispo-
sltion thereof, conferred no power to
grant to the plaintiffs the land in con.
troversy In this case
The same principle is announced and
tho same distinction drawn between
"public lands of tho United States" and
lands which the state acquired upon
her admission by virtue Of her SOW
ereipnty, In tho several decisions Of the
supreme court upon this question, from
thc earlier decision in the case of Mobile
vs. Eslava as Peters 234) to the case of
Barney VS. Keokuk 10 U. 5. 1851
In the enabling act of February %,
1880, (25 Stat. 076>. the territory of
Washington was required. as con.
dilion Of its admission into the Union,
'.to forever disclaim all right and title 10
tine public lands lying within its boun-
daries." This disclaimer is made In the
constitution of the state of Washington,
art. %, sec. 2, which also declares that
the public lands shall be and remain
subject 10 the disposition of tho United