[308] By the Court,
Hawley, 0. J.:
This is an action of ejectment to recover a portion of tlie west half of the southwest quarter of section sixteen, township sixteen, range twenty-one east, Mount Diablo base and meridian. The appellant claims title under a patent issued to his grantors and predecessors in interest by the State of Nevada, on the 14th day of July, 1868, under and by virtue of the statute authorizing the conveyance of lands granted to the State by the seventh section of the enabling act of Congress, entitled “An act to enable the people of Nevada to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,” approved March 21, 1864, which reads as follows: ‘ ‘ That sections numbers sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto in legal subdivisions of not less than one-quarter section, and as contiguous as may be, shall be and are hereby granted to said State for the support of common schools.” (13 U. S. Stat. 32; Stat. 1864-5, 37.) The respondent claims title under a patent issued to it by the United States, on the 7th day of March, 1874, under and by virtue of the act of Congress entitled “An act granting the right of way to ditch and canal owners over the public lands and for other purposes,” approved July 26, 1866 (14 U. S. Stat. 251), the act amendatory thereof, approved July 9, 1870 (16 U. S. Stat. 217), and the act entitled “An act to promote the development of the mining resources of the United States,” approved May 10, 1872 (17 U. S. Stat. 91).
The land in controversy is mineral land, and the respondent is in possession of the same and is engaged in conducting and carrying on the business of mining thereon, and has erected improvements thereon for mining purposes of the value of over eighty thousand dollars. In the year 1867, prior to the date of the survey, or approval of the survey of said land by the government of the United States, the [309] grantors and predecessors in interest of respondent entered upon the land for mining purposes, and claimed and occupied the same in conformity with the laws, customs and usages of miners in the locality and mining district in which said land is situate, and were so possessed and engaged in mining thereon when said land was first surveyed, and when this State issued its patent to the grantors and predecessors in interest of appellant.
The case is one of unusual interest, and involves principles of great importance. It has been ably argued by learned counsel, and has received the careful attention of this Court. Two leading questions are presented for our consideration in determining the legal rights of the respective parties. First. When does the title vest in the State to the sixteenth and thirty-sixth sections granted by the seventh section of the enabling act? Second. Does the patent issued by this State include the mineral lands?
After a thorough examination of all the authorities cited by counsel, we do not deem it necessary to decide whether the grant is one in prcesenti or in futuro. Assuming, for the sake of the argument, that the proper construction to be given to the seventh section of the enabling act is, as claimed by appellant, that the grant took effect absolutely upon the admission of this State into the Union, and that the title to said lands then vested in this State, although subsequent proceedings might, as was said in Schulenberg v. Harriman (21 Wall. 62), “be required to give precision to that title and attach it to specific tracts,” and likewise assuming that Congress had no power after the admission of this State into the Union to impair the grant, without the consent of this State; still, we think it must be admitted that Congress could thereafter, with the consent of this State, prior to the disposal by the State of any of the lands embraced in said sections, and at any time prior to the survey, change the terms of the grant, and we are of opinion that by the subsequent act of Congress and the act of acceptance by the legislature of this State, the mineral lands were reserved from sale by the government of the [310] United States, witli tbe consent of this State, and that the patent issued by this State did not, upon the admitted facts of this case, include the mineral lauds in controversy. If we accept the definition announced by text-writers, “that a grant is a contract; executed, it is true, but still a contract” (3 Parsons on Contracts, 527), and it was so decided in Fletcher v. Peck (6 Cranch, 87), it would be within the power of both parties, by mutual consent, to modify or change the terms of the contract after its execution; and if we adopt the rule as stated by Field, J-, in Schulenberg v. Harriman, supra, that “ a legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires,” the same principle follows, and the law could be changed or modified at any time by the consent of both parties before the rights of others attached, certainly this must be true unless there is some constitutional provision against such acts of legislation.
In Higgins v. Houghton (25 Cal. 255), where it was held that the State of California, by virtue of the grant of March 3, 1853, which in some respects is similar to the grant under consideration, “became the owner of the sixteenth an'd thirty-sixth sections absolutely, not only as to quantity, but as to position also,” the court impliedly recognized the fact that it was within the power of Congress and the State by mutual agreement to change the provisions of the grant. After stating that there had been no legislation by Congress prior to the grant which would interfere with the conclusions reached in said case, the court said: “And if there has been any legislation since the grant that conflicts with the conclusion, it must be null and void unless, indeed, it has been acceded to by the grantee.” Here such subsequent legislation was had by Congress and it was acceded to by the grantee.
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[308] By the Court,
Hawley, 0. J.:
This is an action of ejectment to recover a portion of tlie west half of the southwest quarter of section sixteen, township sixteen, range twenty-one east, Mount Diablo base and meridian. The appellant claims title under a patent issued to his grantors and predecessors in interest by the State of Nevada, on the 14th day of July, 1868, under and by virtue of the statute authorizing the conveyance of lands granted to the State by the seventh section of the enabling act of Congress, entitled “An act to enable the people of Nevada to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,” approved March 21, 1864, which reads as follows: ‘ ‘ That sections numbers sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto in legal subdivisions of not less than one-quarter section, and as contiguous as may be, shall be and are hereby granted to said State for the support of common schools.” (13 U. S. Stat. 32; Stat. 1864-5, 37.) The respondent claims title under a patent issued to it by the United States, on the 7th day of March, 1874, under and by virtue of the act of Congress entitled “An act granting the right of way to ditch and canal owners over the public lands and for other purposes,” approved July 26, 1866 (14 U. S. Stat. 251), the act amendatory thereof, approved July 9, 1870 (16 U. S. Stat. 217), and the act entitled “An act to promote the development of the mining resources of the United States,” approved May 10, 1872 (17 U. S. Stat. 91).
The land in controversy is mineral land, and the respondent is in possession of the same and is engaged in conducting and carrying on the business of mining thereon, and has erected improvements thereon for mining purposes of the value of over eighty thousand dollars. In the year 1867, prior to the date of the survey, or approval of the survey of said land by the government of the United States, the [309] grantors and predecessors in interest of respondent entered upon the land for mining purposes, and claimed and occupied the same in conformity with the laws, customs and usages of miners in the locality and mining district in which said land is situate, and were so possessed and engaged in mining thereon when said land was first surveyed, and when this State issued its patent to the grantors and predecessors in interest of appellant.
The case is one of unusual interest, and involves principles of great importance. It has been ably argued by learned counsel, and has received the careful attention of this Court. Two leading questions are presented for our consideration in determining the legal rights of the respective parties. First. When does the title vest in the State to the sixteenth and thirty-sixth sections granted by the seventh section of the enabling act? Second. Does the patent issued by this State include the mineral lands?
After a thorough examination of all the authorities cited by counsel, we do not deem it necessary to decide whether the grant is one in prcesenti or in futuro. Assuming, for the sake of the argument, that the proper construction to be given to the seventh section of the enabling act is, as claimed by appellant, that the grant took effect absolutely upon the admission of this State into the Union, and that the title to said lands then vested in this State, although subsequent proceedings might, as was said in Schulenberg v. Harriman (21 Wall. 62), “be required to give precision to that title and attach it to specific tracts,” and likewise assuming that Congress had no power after the admission of this State into the Union to impair the grant, without the consent of this State; still, we think it must be admitted that Congress could thereafter, with the consent of this State, prior to the disposal by the State of any of the lands embraced in said sections, and at any time prior to the survey, change the terms of the grant, and we are of opinion that by the subsequent act of Congress and the act of acceptance by the legislature of this State, the mineral lands were reserved from sale by the government of the [310] United States, witli tbe consent of this State, and that the patent issued by this State did not, upon the admitted facts of this case, include the mineral lauds in controversy. If we accept the definition announced by text-writers, “that a grant is a contract; executed, it is true, but still a contract” (3 Parsons on Contracts, 527), and it was so decided in Fletcher v. Peck (6 Cranch, 87), it would be within the power of both parties, by mutual consent, to modify or change the terms of the contract after its execution; and if we adopt the rule as stated by Field, J-, in Schulenberg v. Harriman, supra, that “ a legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires,” the same principle follows, and the law could be changed or modified at any time by the consent of both parties before the rights of others attached, certainly this must be true unless there is some constitutional provision against such acts of legislation.
In Higgins v. Houghton (25 Cal. 255), where it was held that the State of California, by virtue of the grant of March 3, 1853, which in some respects is similar to the grant under consideration, “became the owner of the sixteenth an'd thirty-sixth sections absolutely, not only as to quantity, but as to position also,” the court impliedly recognized the fact that it was within the power of Congress and the State by mutual agreement to change the provisions of the grant. After stating that there had been no legislation by Congress prior to the grant which would interfere with the conclusions reached in said case, the court said: “And if there has been any legislation since the grant that conflicts with the conclusion, it must be null and void unless, indeed, it has been acceded to by the grantee.” Here such subsequent legislation was had by Congress and it was acceded to by the grantee.
After the sixteenth and thirty-sixth sections had been granted, and after this State had been admitted into the Union, Congress passed an act entitled “An act concerning certain lands granted to the State of Nevada,” approved [311] July 4, 1868. After confirming tbe appropriation made by tbe Constitution of tbis State to educational purposes of tbe land granted to tbis State by tbe law of September 4, 1841, and providing for tbe appointment of a “surveyor-general for Nevada,” wbo was to perform certain duties therein prescribed under tbe direction of tbe secretary of tbe interior, it was further enacted: “That in extending the surveys of tbe public lands in the State of Nevada, tbe secretary of tbe interior may, in bis discretion, vary tbe lines of tbe subdivisions from a rectangular form to suit tbe circumstances of tbe country; but in all cases lands valuable for mines of gold, silver, quicksilver or copper, shall be reserved from sale.” (14 U. S. Stat. 85-6, Sec. 5.) Tbis State in accepting tbe grant unequivocally consented to tbe reservation by Congress of tbe mineral lands, and accepted tbe grant with all tbe conditions and reservations mentioned in said section. The act, passed by tbe legislature of tbis State, entitled “An act in relation to and accepting tbe lands granted to tbe State of Nevada by the government of tbe United States,” approved February 13, 1867, is explicit upon tbis point. It reads as follows:
“ Sec. 1. Tbe State of Nevada hereby accepts tbe grants of lands made by tbe government of tbe United States to tbis State, in tbe following acts of Congress, to wit: ‘An act donating public lands to tbe several States and Territories which may provide colleges for tbe benefit of agriculture and tbe mechanic arts,’ approved July 2, 1862, as amended and approved April 14, 1884, and as extended July 4, 1866, by an act entitled ‘An act concerning certain Ian els granted to the State of Nevada,’ upon tbe terms and conditions in said acts expressed, and agrees to comply therewith.
“Sec. 2. Tbe State of Nevada hereby accepts tbe grants of lands made by tbe government of tbe United States to tbis State, in tbe act of Congress entitled ‘An act concerning certain lands granted to tbe State of Nevada,’ approved July 4, 1866, upon tbe terms and conditions in said act expressed, and agrees to comply therewith.
“Sec. 3. Tbe State of Nevada hereby accepts all grants [312] of public lands heretofore made by the government of the United States to this State, upon the terms and conditions so granted, as modified in the act of July 4, 1866, above in this act referred to.” (Stat. 1867, 57.)
This act was passed prior to the survey, by the United States, of the land in controversy, which, from the record in this case, is shown to have been made in August, 1867.
This State, by its act of acceptance of the grant as modified by the act of Congress of July 4, 1866, was estopped from thereafter claiming title to any lands valuable for mines of gold, silver, quicksilver or copper, for such lands were, by said act, expressly reserved from sale. It is evident that when Congress passed the act of July 4, 1866, it thought that by the effect of the grant and the law of the event, that this State would not acquire an absolute ownership in the lands until the surveys were made; but even if it was mistaken as to the legal effect of the grant, its action received the sanction and approval of this State before the title of the State, under any rule of construction, absolutely attached to any specific tract of land. If it be conceded that the State had a vested title to the mineral lands contained in the sixteenth and thirty-sixth sections, prior to the act of February 13, 1867, it is certain that by said act it relinquished its rights -thereto, and thereby agreed to accept other lands in lieu thereof.
The passage of said act was a recognition by the legislature of this State of the validity of the claim made by the government of the United States to the mineral lands.
Whatever might, therefore, be the construction of the language of the enabling act, as interpreted from the act itself, we think it is controlled by the subsequent legislation we have referred to, and that the title of the State to the land conveyed to appellant’s grantors was, at the time of the survey thereof, subject to the terms and conditions imposed by the act of Congress of July 4, 1866, and as the portion of said land in controversy in this action was then “rich in minerals,” and occupied and claimed by respondent’s grantors for mining purposes, the grantors of [313] appellant acquired no title thereto by virtue of the patent issued by this State.
Against the views we have above expressed, counsel for appellant make three objections: 1. It is first argued that the act of July 4, 1866, is prospective in its terms, and that it only applies to future acts or grants. We think that the act, when read entire, is susceptible of but one construction. It refers to lands granted prior to, and at the time of, the passage of the act. The title of the act clearly indicates that it was the intention of Congress to make the act apply to lands already granted: “An act concerning lands granted to the State of Nevada;” not lands to be thereafter granted, but lands granted by that and other prior acts of Congress. The construction we have placed upon this act must certainly be correct, if it be true, as was argued by appellant’s counsel upon another branch of this case, and held to be the law in Whitney v. Whitney (14 Mass. 92), that we should not be encouraged to direct our conduct, in arriving at the intentions of the legislature, “ by the crooked cord of discretion, but by the golden metewand of the law;” that we are not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness. But we do not think there is any room for argument as to its meaning. It applies to all grants made by Congress to the State of Nevada, where the lands granted had not been surveyed by the government of the United States, and included the grant mentioned in the enabling act, and such was the evident understanding of the legislature of this State when it passed the act of acceptance, approved February 13, 1867.
2. It is argued that the act of Congress applies only to the public lands then belonging to the United States, and it is claimed that inasmuch as the sixteenth and thirty-sixth sections had already been granted, the act did not affect the title to them, as they were no longer public lands. An exámination of the various acts of Congress relative to the surveying of the public lands, has convinced us that the word public is applied by Congress to all the unsurveyed [314] lands, whether the same or any portion thereof had been previously granted or not.
All lands are public within the meaning of that word, as used in the act referred to, until the survey is made. This is necessarily so, because, until the surveys are made, the rights of the grantee to any specific tract of land could not be ascertained; hence it is that the word public is used to distinguish the unsurveyed from the surveyed and segregated lands where the rights of private proprietorship has attached.
3. The last objection argued by appellant’s counsel is, that the act of February 13, 1867, is in violation of the third section of Article XI of the Constitution of this State. It is claimed that by the provisions of said section, the sixteenth and thirty-sixth sections are set apart and dedicated to the public schools, and that it was not, therefore, within the power of the legislature to relinquish the title of the State to these sections. Section 3 provides that “all lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of public schools, in the act of the thirty-eighth Congress, to enable the people of Nevada Territory to form a State government, * * * shall be and the same are hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for any other uses,” etc.
The plain object of this provision of the Constitution was to prevent the legislature from passing any law that would appropriate the proceeds received by the State from the sale of such lands to any other than educational purposes. The title to said sections is vested in the State, not in the schools. The lands are solemnly pledged to educational purposes, and when sold by the State the proceeds arising therefrom must, under the provisions of the Constitution, be paid into the school fund, and only be used for educational purposes, ‘ ‘ and shall not be transferred to any other fund for any other uses.” The same disposition must also be made of the proceeds derived by the State from the sale of lands selected in lieu of the sixteenth and thirty-sixth sections. There is noth[315] ing in tbe act which attempts to make any disposition of said lands for any other than educational purposes. The school fund is fully protected, and, in our opinion, this provision of the Constitution has not been violated.
We have not, in this opinion, considered the legal effect of the joint resolution of Congress, approved January 30th, 1865, which provides that no act passed at the same session of Congress as the enabling act “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,” and which was construed by the secretary of the interior to exclude from the operation of the enabling act all mineral lands (Copp’s U. S. Mining Decisions, 81); nor have we deemed it necessary to discuss many other points that were urgently pressed by counsel, as the result we have reached, upon-the points decided, are in our judgment conclusive of this case.
The judgment of the district court is affirmed.