Barden v. Northern Pacific Railroad Company/Opinion of the Court
This action is brought for the possession of certain parcels or lots of mineral land claimed by the plaintiff below-the defendant in error here-as embraced in the grant of the United States of July 2, 1864. The facts constituting the claim of the plaintiff are set forth at length in the complaint, and to their sufficiency the defendants demurred, as not constituting a cause of action, or entitling the plaintiff to the relief prayed. The lots are there conceded to be mineral lands, and the grant of the government applies, in terms, only to lands other than mineral.

To remove any doubt of the intention of the government to confine its concession to lands of that character, the grant is accompanied with a proviso declaring that all mineral lands are excluded from its operations. And as if to cut off every possible suggestion, by any ingenious and strained construction, that mineral lands might be reached under the legislation giving vast tracts of public lands to states and private corporations, under the pretense of aiding public improvements, a joint resolution was passed by congress in January of the following year, declaring 'that no act passed at the first session of the thirty-eighth congress [that being of the year 1864] granting lands to states or corporations to aid in the construction of roads, or for other purposes, or to extend the time of grants heretofore made, shall be so construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant.' 13 Stat. 567. This provision should be borne in mind when the statement is made, as it is, that there has been no reservation of mines or minerals to the government.

No part of the contemplated road or telegraph line of the Northern Pacific Railroad Company had at the passage of this joint resolution been constructed or commenced; and on the authority of the case of Northern Pac. R. Co. v. Traill Co., 115 U.S. 600, 6 Sup. Ct. 201, its provisions are to be deemed an amendment of the original act, and as operative as if originally incorporated therein.

The action being for the possession of lands conceded to be mineral, under the act of congress of July 2, 1864, it would seem that the simple reading of the granting clause and its proviso, and the joint resolution mentioned, would be a sufficient answer to the complaint, and a sufficient reason to sustain the demurrer, without further consideration. But the plaintiff's counsel appear to find in the fact which they allege-that the lands were not known to be mineral at the time the plaintiff, by the definite location of the line of its road, was able to identify the sections granted-a sufficient ground to avoid the limitations of the grant, and the prohibitions of the proviso and joint resolution.

The grant was of 20 alternate sections of land, designated by odd numbers, on each side of the road which the plaintiff was authorized to construct,-a tract of 2,000 miles in length, and 40 miles in width, constituting a territory of 80,000 square miles. It is true the grant was a float, and the location of the sections could not be made until the line of the proposed road had become definitely fixed. The ascertainment of the location of the sections in no respect affected the nature of the lands, or the conditions on which their grant was made. If swamp lands or timber lands or mineral lands, previously, they continued so afterwards.

It is also true that the grant was one in praesenti, of lands to be afterwards located. From the immense territory from which the sections were to be taken, it could not be known where they would fall until the line of the road was established. Then the grant attached to them, subject to certain specified exceptions; that is, the sections, or parts of sections, which had been previously granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, were excepted, and the title of its other sections or parts of sections attached as of the date of the grant, so as to cut off intervening claimants. In that sense the grant was a present one. But it was still, as such grant, subject to the exception of mineral lands made at its date, or then excluded therefrom by conditions annexed. Whatever the location of the sections, and whatever the exceptions then arising, there remained that original exception declared in the creation of the grant. The location of the sections, and the exceptions from other causes, in no respect affected that one, or limited its operation. There is no language in the act from which an inference to that effect can be drawn, in the face of its declaration that all mineral lands are thereby 'excluded from its operations' and of the joint resolution of 1865 that 'no act of the thirty-eighth congress [that is, of the previous session of 1864], granting lands to states or corporations, to aid in the construction of roads or for other purposes, shall be so construed as to embrace mineral lands.' The plaintiff, however, appears to labor under the persuasion that only those mineral lands were excepted from the grant which were known to be such on the identification of the granted sections by the definite location of the proposed road, and the ascertainment at that time of the exceptions from them of parcels of land previously disposed of, and that the want of such knowledge operated in some way to eliminate the reservation made by congress of the mineral lands. But how the absence of such knowledge, on the ascertainment of the sections granted, and the parcels of land embraced therein, previously disposed of, had the effect, or could have the effect, to eliminate the reservation of mineral lands from the act of congress, we are unable to comprehend. Such a conclusion can only arise from an impression that a grant of land cannot be made without carrying the minerals therein, and yet the reverse is the experience of every day. The granting of lands, either by the government or individuals, with a reservation of certain quarries therein, as of marble or granite or slate, or of certain mines, as of copper or lead or iron, found therein, is not an uncommon proceeding; and the knowledge or want of knowledge at the time by the grantee, in such cases, of the property reserved, in no respect affects the transfer to him to the title to it. No one will affirm that want of such knowledge on the identification of the lands granted, containing the reserved quarries or mines, would vacate the reservation; and we are unable to perceive any more reason, from that cause, for eliminating the reservation of minerals in the present case from the grant of the government, than for eliminating for a like cause the reservation of quarries or mines in the cases supposed. And it will hardly be pretended that congress has not the power to grant portions of the public land with a reservation of any severable products thereof, whether minerals or quarries contained therein, and whether known or unknown; yet such must be the contention of the plaintiff, or its conclusion will fall to the ground. The cases cited in support of the claim of the plaintiff only show that the identification of the sections granted, and of the exceptions therefrom of parcels of land previously disposed of, leaves the title of the remaining sections, or parts thereof, to attach as of the date of the grant, but has absolutely no other effect. Such is the purport, and the sole purport, of the cases of St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U.S. 1, 5, 11 Sup. Ct. 389, and Salt Co. v. Tarpey, 142 U.S. 241, 247, 12 Sup. Ct. 158, cited by the plaintiff. In both of those cases the writer of this opinion had the honor to write the opinions of this court; and it was never asserted or pretended that they decided anything whatever respecting the minerals, but only that the title to the lands granted took effect, with certain designated exceptions, as of the date of the grant. They never decided any thing else. And what was that title? It was of the lands which at the time of the grant were not reserved as minerals, and of the lands which at the time of the location had not been sold, reserved, or to which a pre-emption or homestead right had not attached. If one were to sell land, reserving therefrom the minerals of gold or silver found therein, and tell the purchaser to take the surveyer, and measure off the land, would it be urged or pretended that, the moment the surveyor ascertained the boundaries of the land sold, the reservation of the minerals then undiscovered would be eliminated? Would any one uphold the reasoning or the doctrine which would assert such a conclusion? And can any one see the difference between the case now before us and the case supposed? Not a word was said or suggested in the cases cited about the elimination of the reservation for that cause; and not only in the cases cited by the plaintiff, but in a multitude of other cases, almost without number, a like silence was observed. In none of them was it ever pretended that the ascertainment of the location of the lands granted operated to withdraw from the grant the reservation of the minerals then undisclosed. The grant did not exist without the exception of minerals therefrom, and congress has declared, in positive terms, that the act shall not be construed to embrace them; and there is nothing in any of the cases cited in the plaintiff's contention which indicates in the slightest degree that the original exception was subsequently qualified.

It seems to us as plain as language can make it that the intention of congress was to exclude from the grant actual mineral lands, whether known or unknown, and not merely such as were at the time known to be mineral. After the plaintiff had complied with all the conditions of the grant, performed every duty respecting it, and, among other things, that of definitely fixing the line of the route, its grant was still limited to odd sections which were not mineral at the time of the grant, and also to those which were not reserved, sold, granted, or otherwise appropriated, and were free from pre-emption and other claims or rights at the time the line of the road was definitely fixed, and was coupled with the condition that all mineral lands were excluded from its operation, and that in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd sections, nearest to the line of the road, might be selected.

There is, in our judgment, a fundamental mistake made by the plaintiff in the consideration of the grant. Mineral lands were not conveyed, but by the grant itself, and the subsequent resolution of congress cited, were specifically reserved to the United States, and excepted from the operations of the grant. Therefore, they were not to be located at all, and, if in fact located, they could not pass under the grant. Mineral lands being absolutely reserved from the inception of the grant, congress further provided that at the time of the location of the road other lands should be excepted, viz. those previously sold, reserved, or to which a homestead or pre-emption right had attached.

It is difficult to perceive the principle upon which the term 'known' is sought to be inserted in the act of congress, either to limit the extent of its grant or the extent of its mineral, though its purpose is apparent. It is to add to the convenience of the grantee, and enhance the value of its grant. But to change the meaning of the act is not in the power of the plaintiff, and to insert by construction what is expressly excluded is, in terms, prohibited. Besides the impossibility, according to recognized rules of construction, of incorporating in a statute a new term, one inconsistent with its express declarations,-there are many reasons for holding that the omission of the word 'known,' as defining the extent of the mineral lands excluded, was purposely intended.

The grant to the railroad company was, as we have already mentioned, 2,000 miles in length and 40 miles in width, making an area of 80,000 square miles,-a territory nearly equal in extent to that of Ohio and New York combined. This territory was known to embrace in its hills and mountains great quantities of minerals of various kinds, and, among others, those of gold and silver. It was sparsely inhabited, and in many districts of large extent was entirely unoccupied. The policy of congress, as expressed in its numerous grants of public lands to aid in the construction of railroads, has always been to exclude the mineral lands from them, and reserve them for special disposition, as seen in the following acts, among others: Acts July 1, 1862 (12 Stat. 489) and of July 2, 1864 (13 Stat. 356), making grants to the Union and Central Pacific Companies; Act July 4, 1866 (14 Stat. 83), making a grant to the Iron Mountain Railroad Company; Act July 13, 1866 (14 Stat. 94), making a grant to the Placerville, etc., Railroad; Act July 25, 1866 (14 Stat. 239), making a grant to the California & Oregon Railroad (sections 2 and 10); Act July 27, 1866 (14 Stat. 292), making a grant to the Atlantic & Pacific Railroad and to the Southern Pacific Railroad; Act March 2, 1867 (14 Stat. 548), making a grant to the Stockton & Copperopolis Railroad; Act March 3, 1871 (16 Stat. 573), making a grant to the Texas Pacific Railroad. In all of these cases, and in all grants of public lands in aid of railroads, minerals (except iron and coal) have uniformly been reserved, and in no instance has such a grant been held to pass them. Patents issued after an examination and determination of the fact by the government whether portions of the land embraced in such grants did or did not contain other minerals, have been held as conclusive in subsequent controversies, and of this we shall speak more fully hereafter; but grants in aid of railroads (and we speak of no other grants) before such determination and issue of a patent have never been held to pass other minerals than iron or coal, and it is only with other minerals, and with lands containing them, that we are concerned in this case.

When the act was passed making the grant to the plaintiff, it would have been impossible to state with any accuracy what parts of the tract contained minerals, and what did not. That fact could only be ascertained after extensive and careful explorations; and it is not reasonable to suppose that congress would have left that important fact dependent upon the simple designation by the plaintiff of the line of its road, and the possible disclosure of minerals by the way, instead of leaving it to future and special explorations for their discovery. To suppose that congress intended any such limitation would be to impute to it a desire that its exclusion of minerals from the grant should be defeated, which it is impossible to admit. It is conceded that, in the interpretation of statutes like the one before us, reference may be had, not only to the physical condition of the country, and its surroundings, but that its political conditions and necessities may also be considered. The tract granted covered a belt believed to be rich in minerals of gold and silver; and the United States were at the time engaged in a terrific conflict for the preservation of the Union, incurring an immense debt, exceeding $2,000,000,000, and many of their citizens engaged in the struggle looked forward hopefully and confidently to this source for relief to the burdened treasury. And we cannot, with reason, suppose that under these circumstances the United States intended that the control of this source of wealth and relief should be taken from them. It passes belief that they could have deliberately designed, in this hour of sore distress, and fearful pressure upon their finances, to give away, to a corporation of their own creation, not only an imperial domain in land, but the boundless wealth that might lay buried in the mineral regions covered by 80,000 square miles. They knew that the mineral belt over which the proposed railroad was to pass was almost entirely unexplored. They therefore retained from their grant the mineral lands, whether known or unknown, and left the discovery of the minerals to future explorations, and their disposition to future legislation. We can never admit that, at the time and under the circumstances upon which the grant was made, congress intended that its clear words of exclusion of minerals should be interpreted to mean the exact reverse; that when it declared that 'no act of congress granting lands in aid of railroads' passed during the session of 1864 (the session at which the grant under consideration was made) should 'be construed to embrace minerals,' it meant that such act might be so construed. Never has it as yet fallen to congress to deceive by its legislation and juggle in this way.

To incorporate the term 'known' into the act, and add it to the description of the mineral excepted, would also contravene a settled rule in the construction of grants like the one before us, that nothing will pass to the grantee, by implication or inference, unless essential to the use and enjoyment of the thing granted, and that exceptions intended for the benefit of the public are to be maintained, and liberally construed. As justly observed by counsel for the defendants in their very able brief, 'the reservation in the grant of mineral lands was intended to keep them under government control for the public good, in the development of the mineral resources of the country, and the benefit and protection of the miner and explorer, instead of compelling him to litigate or capitulate with a stupendous corporation, and ultimately succumb to such terms, subject to such conditions, and amenable to such servitudes as it might see proper to impose. The government has exhibited its beneficence in reference to its mineral lands as it has in the disposition of its agricultural lands, where the claims and rights of the settlers are fully protected. The privilege of exploring for mineral lands was in full force at the time of the location of the definite line of the road, and was a right reserved and excepted out of the grant at that time.'

Some weight is sought to be given by counsel of the plaintiff to the allegation that the lands in controversy are included in the section which was surveyed in 1868, and a plat thereof filed by the surveyor in the local land office in September of that year, from which it is asserted that the character of the land was ascertained and determined, and reported to be agricultural, and not mineral. But the conclusive answer to such alleged determination and report is that the matters to which they relate were not left to the surveyor general. Neither he nor any of his subordinates was authorized to determine finally the character of any lands granted, or make any binding report thereon. Information of the character of all lands surveyed is required of surveying officers, so far as knowledge respecting them is obtained in the course of their duties, but they are not clothed with authority to especially examine as to these matters outside of their other duties, or determine them, nor does their report have any binding force. It is simply an addition made to the general information obtained from different sources on the subject. In Cole v. Markley, 2 Dec. Dep. Int. 847-849. Mr. Teller, when secretary of the interior, in a communication to the commissioner of the general land office, speaks at large of the notations of surveyors, and says: 'Public and official information was the object of these notations, with a view to preventing entry until the facts are finally determined. They should be, and they are, only prima facie evidence, and subject to be rebutted by satisfactory proof of the real character of the land.' The determination of the character of the land granted by congress, in any case, whether agricultural or mineral or swamp or timber land, is placed in the officers of the land department, whose action is subject to the revision of the commissioner of the general land office, and, on a appeal from him, by the secretary of the interior. Under their direction and supervision, the actual character of the land may be determined and fully established. The effect of a patent issued by them under the authority of congress, as to such matters, we shall presently consider. In the present case the mineral character of the lands in controversy is conceded. They are alleged in the complaint to be mineral lands containing gold and silver and other precious metals.

Nor is there any force in the averments that in November, 1868, the plaintiff listed the section embracing the mineral lands in controversy, with other sections, as portions of its grant, and filed the lists in the local land office at Helena, and paid the receiver's fees for filing the same, and that the register and receiver accepted, allowed, and approved the list, and certified the same to the commissioner of the general land office, and that no part of the fees has ever been refunded. The act of congress does not provide that selections of the lands by the plaintiff, as a part of its grant, shall, in any respect, change its purport and effect, and eliminate any of its reservations; nor does it empower the officers of the local land office to accept the list as conclusive with respect to such grant, in any particular. There was therefore no obligation on the part of any one to refund to the plaintiff the fees paid on filing the list mentioned, when an attempt is made to do away with its supposed effect.

There is, in our opinion, no merit in any of the positions advanced by the plaintiff in support of its claim to the mineral lands in controversy. The language of the grant to the plaintiff is free from ambiguity. The exclusion from its operation of all mineral lands is entirely clear, and, if there were any doubt respecting it, the established rule of construction applicable to statutes making such grants would compel a construction favorable to the grantor.

Some reference should be made here to the language used in the cases of Deffeback v. Hawke, 115 U.S. 399, 6 Sup. Ct. 95, and Davis' Adm'r v. Weibbold, 139 U.S. 507, 11 Sup. Ct. 628, as it is contended that it is in conflict with the views expressed in the present case. If so, the writer of this opinion, who was also the writer of the opinions in both of the cases cited, must take the responsibility of any conflict with the views now expressed. It is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination, and the test of experience.

The case of Deffeback v. Hawke arose in this wise: The plaintiff asserted title to mineral lands under a patent of the United States, founded upon an entry under the laws of congress, for the sale of mineral lands. The defendant, not having the legal title, claimed a better right to the premises by virtue of a previous occupation of them by his grantor as a lot on a portion of the public lands appropriated and used as a town site; that is, settled upon for purposes of trade and business, and not for agriculture, and laid out into streets, lots, blocks, and alleys for that purpose. And it was held by this court that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper could be obtained under the pre-emption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands. These three cases-those under the pre-emption and homestead laws and town-site act-were classed together. It was found that, under the pre-emption and homestead act, lands containing known saline deposits and mines could not be purchased. In the town-site act it was provided that, by virtue of its provisions, no title could be acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws; and, under the mineral act of congress, it was provided that, in all cases, lands valuable for minerals should be reserved from sale, except as otherwise expressly provided. The court held that, under those acts, land could be purchased which was not known to be mineral; and from this the inference was drawn that only lands known at the time of the sale to be valuable for minerals could be excluded, and, if they were not thus known to be valuable for minerals, a sale might be had. This was not a case arising upon a grant like the one under consideration at present; but, inasmuch as the law of congress authorized lands valuable for minerals to be sold generally under the mineral act, and excluded from sale mineral lands when claimed for homesteads or preemption of for town sites, it was thought that these conflicting provisions of law would be reconciled by simply excluding from the sale lands known at the time to be mineral. But that case has no bearing upon the present one, involving the construction of an act of congress declaring, in express terms, that no mineral lands shall be conveyed by the grant made.

The case of Davis' Adm'r v. Weibbold was an action on the part of a mineral claimant who had obtained a patent in January, 1880, of a parcel of land within the exterior limits of Butte town site, subsequently to the patent for the town site.

When the entry of the town site was had, and the patent issued, and a sale was thereafter made to the defendant of the lots held by him, it was not known-at least, it does not appear that it was known-that there were any valuable mineral lands within the town site; and the question was whether, in the absence of this knowledge, the defendant, who claimed under the town-site patent, could be deprived, by the laws of the United States, of the premises purchased and occupied by him, because of a subsequent discovery of minerals in them, and the issue of a patent to the discoverer, under whom the plaintiff claimed. The court said that the declaration that no title could be acquired, under the provisions relating to such town sites, and the sale of lands therein, to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws, would seem, on first impression, to constitute a reservation of such mines in the land sold, and of mining claims on them, to the United States. But such was held not to be the necessary meaning of the terms used. In strictness, they imported only that the provisions by which the title to the land in such town sites was transferred should not be the means of passing a title also to mines of gold, silver, cinnabar, or copper in the land, or to valid mining claims or possessions thereon, but that they were to be read in connection with the clause protecting existing rights to mineral veins, and with the qualification uniformly accompanying exceptions in acts of congress of mineral lands from grant or sale. Thus read, the court held that they merely prohibited the passage of title, under the provisions of the town-site laws, to mines of gold, silver, cinnabar, or copper which were known to exist on the issue of the town-site patent, and to mining claims and mining possessions, in respect to which such proceedings had been taken, under the law or the custom of miners, as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried, unknown, in the depths of the earth. The patent for the town site was therefore held to cover minerals subsequently discovered in the lands patented. The patent was, in law, a declaration that minerals did not exist in the premises when it was issued, and the subsequent acquisition of minerals in the town site was within the specific authorization of the act of congress that all valuable minerals should be open for exploration and sale. There is a marked distinction between that case, under the town-site law, and the present case, under a grant of congress excluding mineral lands from its operation, although it is conceded that some of the language used is broader than the necessities of the case required. Yet the effect given to the town-site patent will be found not inconsistent with the views hereafter expressed in the present case.

Some effect is also sought to be given to the fact that congress authorized the Northern Pacific Railroad Company to place a mortgage upon its entire property. Admitting that such is the fact, the conclusion claimed does not follow. Congress thereby only authorized a mortgage upon the property granted to the company, which was the lands, without minerals. The mortgage could not cover more than the property granted. So, also, it is said that the states and territories through which the road passes would not be able to tax the property of the company unless they could tax the whole property,-minerals as well as lands. We do not see why not. The authority to tax the property granted to the company did not give authority to tax the minerals, which were not granted. The property could be appraised without including any consideration of the minerals. The value of the property excluding the minerals could be as well estimated as its value including them. The property could be taxed for its value to the extent of the title, which is of the land.

The grant under consideration is one of a public nature. It covers an immense domain, greater in extent than the area of some of our largest states, and it must be strictly construed. It would seem, from the frequency with which we have announced this doctrine, that it should be forever closed against further question; but, as the most extravagant pretensions are made in the plaintiff's construction of the present grant, we will venture to refer to one or two of the important judicial declarations on that subject.

The general rule, when grants relate to matters of public interest, in thus forcibly expressed by Chief Justice Taney: 'The object and end of all government,' said the chief justice, speaking for the court, 'is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created. * * * The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations.' Charles River Bridge v. Warren Bridge, 11 Pet. 507.

In Leavenworth, L. & G. R. Co. v. U.S., 92 U.S. 733, this court said: 'The rules which govern the interpretation of legislative grants * * * apply as well to grants of lands to states to aid in building railroads as to grants of special privileges to private corporations. In both cases the legislature, prompted by the supposed wants of the public, confers on others the means of securing an object, the accomplishment of which it desires to promote, but declines to undertake. * * * If the terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings,-one of extension, and one of limitation,-they must be accepted in a sense favorable to the grantor.'

In Railroad Co. v. Barney, 113 U.S. 618, 5 Sup. Ct. 606, speaking of the construction of legislative grants, the court said: 'They are to receive such a construction as will carry out the intent of congress, however difficult it might be to give full effect to the language used, if the grants were by instruments of private conveyance. To ascertain that intent, we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.'

The earnest contention of the counsel of the plaintiff arises principally, we think, from an unfounded apprehension that our interpretation will lead to uncertainty in the titles of the country. If the exception of the government is not limited to known minerals, the title, it is said, may be defeated years after the land has passed into the hands of the grantee, and improvements of great extent and value have been made upon its faith. It is conceded to be of the utmost importance to the prosperity of the country that titles to land, and to minerals in them, shall be settled, and not be the subject of constant and ever-recurring disputes and litigation, to the disturbance of individuals, and the annoyance of the public. We do not think that any apprehension of disturbance in titles from the views we assert need arise. The law places under the supervision of the interior department, and its subordinate officers, acting under its direction, the control of all matters affecting the disposition of the public lands of the United States, and the adjustment of private claims to them under the legislation of congress. It can hear contestants, and decide upon the respective merits of their claims. It can investigate and settle the contentions of all persons with respect to such claims. It can hear evidence upon, and determine, the character of lands to which different parties assert a right; and when the controversy before it is fully considered, and ended, it can issue to the rightful claimant the patent provided by law, specifying that the lands are of the character for which a patent is authorized. It can thus determine whether the lands called for are swamp lands, timber lands, agricultural lands, or mineral lands, and so designate them in the patent which it issues. The act of congress making the grant to the plaintiff provides for the issue of a patent to the grantee for the land claimed; and as the grant excludes mineral lands, in the direction for such patent to issue, the land office can examine into the character of the lands, and designate it in its conveyance.

It is the established doctrine, expressed in numerous decisions of this court, that wherever congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake its determination is conclusive against collateral attack.

In Smelting Co. v. Kemp, 104 U.S. 651, this court thus spoke of the land department in the transfer of public lands: 'The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions, designating the persons who may acquire it, and the terms of its acquisition. That the provisions may be properly carried out, the land department, as part of the administrative and executive branch of the government, has been created to supervise all the various proceedings taken to obtain the title, from their commencement to their close. In the course of their duty the officers of that department are constantly called upon the hear testimony as to matters presented for their consideration, and to pass upon its competency, credibility, and weight. In that capacity they exercise a judicial function, and therefore it has been held in various instances by this court that their judgment as to matters of fact properly determinable by them is conclusive, when brought to their notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their jurisdiction, unassailable, except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title; and, as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration, by that branch of the government to which the alienation of the public lands, under the law, is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action of law.'

In Steele v. Refining Co., 106 U.S. 450, 1 Sup. Ct. 389, the language of the court was that: 'The land department, as we have repeatedly said, was established to supervise various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualification of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its annullment or limitation.'

In Heath v. Wallace, 138 U.S. 573, 11 Sup. Ct. 380, it was held that 'the question whether or not lands returned as 'subject to periodical overflow' are 'swamp and overflowed lands' is a question of fact, properly determinable by the land department;' and Mr. Justice Lamar added: 'It is settled by an unbroken line of decisions of this court in land jurisprudence that the decisions of that department upon matters of fact within its jurisdiction are, in the absence of fraud or imposition, conclusive and binding on the courts of the country.' If the land department must decide what lands shall not be patented, because reserved, sold, granted, or otherwise appropriated, or because not free from pre-emption or other claims or rights at the time the line of the road is definitely fixed, it must also decide whether lands are excepted because they are mineral lands. It has always exercised this jurisdiction in patenting lands which were alleged to be mineral, or in refusing to patent them because the evidence was insufficient to show that they contained minerals in such quantities as to justify the issue of the patent. If, as suggested by counsel, when the secretary of the interior has under consideration a list of lands to be patented to the Northern Pacific Railroad Company, it is shown that part of said lands contain minerals of gold and silver, discovered since the company's location of its road opposite thereto, he would not perform his duty, stated in Knight v. Association, 142 U.S. 178, 12 Sup. Ct. 258, as the 'supervising agent of the government, to do justice to all claims, and preserve the rights of the people of the United States,' by certifying the list, until corrected in accordance with the discoveries made known to the department. He would not otherwise discharge the trust reposed in him in the administration of the law respecting the public domain.

There are undoubtedly many cases arising before the land department, in the disposition of the public lands, where it will be a matter of much difficulty, on the part of its officers, to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands; and in such cases the rule adopted, that they will be considered mineral or agricultural as they are more valuable in the one class or the other, may be sound. The officers will be governed by the knowledge of the lands obtained at the time, as to their real character. The determination of the fact by those officers that they are one or the other will be considered as conclusive.

In the case of Railroad Co. v. Valentine, 11 Dec. Dep. Int. 238, 246, the late secretary of the interior, Mr. Noble, speaks of the practice of the land department in issuing patents to railroad lands. His language is: 'The very fact, if it be true, that the office of the patent is to define and identify the land granted, and to evidence the title which vested by the act, necessarily implies that there exists jurisdiction in some tribunal to ascertain and determine what lands were subject to the grant, and capable of passing thereunder. Now, this jurisdiction is in the land department; and it continues, as we have seen, until the lands have been either patented or certified to or for the use of the railroad company. By reason of this jurisdiction, it has been the practice of that department, for many years past, to refuse to issue patents to railroad companies for lands found to be mineral in character at any time before the date of patent. Moreover, I am informed by the officers in charge of the mineral division of the land department that, ever since the year 1867 (the date when that division was organized), it has been the uniform practice to allow and maintain mineral locations within the georgraphical limits of railroad grants, based upon discoveries made at any time before patent, or certification where patent is not required. This practice having been uniformly followed and generally accepted for so long a time, there should be, in my judgment, the clearest evidence of error, as well as the strongest reasons of policy and justice controlling, before a departure from it should be sanctioned. It has, in effect, become a rule of property.'

It is true that the patent has been issued in many instances without the investigation and consideration which the public interest requires; but if that has been done without fraud, through unadvisedly, by officers of the government charged with the duty of supervising and attending to the preparation and issue of such patents, the consequence must be borne by the government, until, by further legislation, a stricter regard to their duties in that respect can be enforced upon them. The fact remains that under the law the duty of determining the character of the lands granted by congress, and stating it in instruments transferring the title of the government to the grantees, reposes in officers of the land department. Until such patent is issued, defining the character of the land granted, and showing that it is nonmineral, it will not comply with the act of congress in which the grant before us was made to plaintiff. The grant, even when all the acts required of the grantees are performed, only passes a title to nonmineral lands; but a patent issued in proper form, upon a judgment rendered after a due examination of the subject by officers of the land department charged with its preparation and issue, that the lands were nonmineral, would, unless set aside and annulled by direct proceedings, estop the government from contending to the contrary, and, as we have already said, in the absence of fraud in the officers of the department, would be conclusive in subsequent proceedings respecting the title.

The delay of the government in issuing a patent to the plaintiff, of which great complaint is made, does not affect the power of the company to assert in the mean time, by possessory action (as held in Salt Co. v. Tarpey, 142 U.S. 241, 12 Sup. Ct. 158), its right to lands which are in fact nonmineral. But such delay, as well observed, cannot have the effect of entitling it to recover, as is contended in this case, lands which it admits to be mineral. The government cannot be reasonably expected to issue its patent, and it is not authorized to do so, without excepting mineral lands, until it has had an opportunity to have the country, or that part of it for which a patent is sought, sufficiently explored to justify its declaration in the patent, which would be taken as its determination, that no mineral lands exist therein.

On the other hand, an affirmance of the judgment in this case would enlarge the grant of the government, against its oft-repeated exception of mineral lands, and give to the plaintiff the vast mineral wealth of the states through which the grant passes. It would render the plaintiff corporation imperial in its resources,-one that would far outshine 'the wealth of Ormus and of Ind.' And, as counsel justly observes, the same rule would apply to all our transcontinental railroads, and give to them nearly all our mineral lands, when congress has, time and again, declared that they should have no mineral lands, and that no act of congress should be construed to give them any, and that they, 'in all cases, shall be and are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant.' It is unnecessary to pursue this subject any further. We will only observe that we do not notice the numerous assertions made in the argument of the plaintiff as to what has been decided by this court, and what is the settled rule, in cases of railroad grants by congress embracing mineral lands, the correctness of which we do not admit. The official reports will disclose wherein the errors lie, sufficiently for the attainment of accuracy of statement in matters of judicial decision.

The plaintiff in this case, not having a patent, and relying solely upon its grant, which gives no title to the minerals within any of its lands, shows by its complaint no cause of action for the possession of the mineral lands claimed. The demurrer of the defendants should have been sustained, and judgment entered thereon in their favor.

It follows that the judgment of the circuit court in this case must be reversed, and the cause remanded to that court, with directions to sustain the demurrer of the defendants, and enter judgment thereon in their favor, with costs; and it is so ordered.

Mr. Justice Brewer, Mr. Justice Gray, and Mr. Justice Shiras dissenting.

Notes