The new North-west., 1890-08-29
THE MINERAL LANDS.

twill be remembered that some months
since we published the opinion of Judge
Sawyer, of the United States Circuit Court,
Northern District of California, in the case
Of Francoeur VS.. Newhouse, 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 us 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-numbcred
section and within the tenmilc limit Of the
grant made To the company. Date of grant,
July I, 1862; surveyed in 1866 and survey
filed i'll 1867. That by the survey the land
was determined to be agricultural lands
and not minerals; that at the date of the
passage Of the act, and when the line Of
the railroad was fixed and when it was CON
structed. no part of the land was known
mineral land, or returned or denomnuted
as mineral land. That in 1888 a vein of
quartz bearing gold in paying quantities,
was discovered upon the land; that April
90, 1855, an application for Il patent was
filed, aud ON May ), 1871, the Land De
partmcnt issued II mineral patent for the
In, +n +Ir En, al, =,
These arc the facts as set out in Judge
Sawycr's opinion and rs they appeared
upon the plcadings in the case.
Passing over much that was said by
Judge Sawyer in that opinion, we come to
the following remark made by him: In
granting the public lands, C"ngress must be
presumed 10 dtoi rHA MtM in tit7r If tie
conditioHS as they a1c hao,rn, or $uppoScd to
be, at tie tine. ErcepttonS muStbe presumed
10 rfttr to matters that "rr re"dIy opporcat
upoa iuxpcction." AS the grant took effect
III present., that is,at the time Of its passa &c
and approval. ii MAS this statement of the
law by Judge Sawyer which startled the
miners. The trial Of til" ease hinged upon
the latter part Of the above statement Of
the law.
As will be remembered. Judge Sawyer's
opinion was not given upon the trial Of the
case, but upon the peadings The case
has Just been tried before 4 jury, IN ac-
count Of which will be found III another
place, taken from the San Francisco Niit-
ing "j,H .Srtentift P,t*S. The court, it ap-
pears, instructed the jury that AL such land
as was rtHdiY YnSrtrt'tj11t}ft rs mineral land
in 1862, or At the date Of definite location
Of the railroad. must b" considered ex-
ccptcd from the grant. aud the jury found
for the defendant. Me verdict being Based
npon that issue,
This is really = close point. Could the
character Of tie land at the time of the
grant and definite location brrea,lilH asccr
tanned to be mineral lands: | 50, it was
not included in the grant. 1t might have
been known ia be such: hut ii not known,
could it have been readily aSccrtaincl to
be such by Inspection: To state 4 cast. in
point: Suppose III" whole Of the Champion
claim to be upon nn odd Numbered section.
II its mineral character had been hto,sa in
1861, at the time Of the Northern Pacific
grant, there could be no elnnb1 that itwould
not be included in the railroad grant. But
suppose the lead was discovered many
wears after this. rs Il matter of fact it was
could this land in 1864 have been READILY
ascertained to be mineral land: A jury
| would perhaps say yes. for the lead crops