Northern Pac. R. v. Barden

46 F. 592, 1891 U.S. App. LEXIS 1320

• Court: U.S. Circuit Court for the District of Montana
• Decided: June 12, 1891
• Status: Published

Opinions

Sawyer, J.,

(after stating the facts as above.) The complaint undoubtedly states many facts, not necessary to be stated in a complaint to recover land. It not only sets up the probative, as well as, the ultimate, facts necessarj'- to be stated to make a good complaint, but the facts which the defendants will rely upon to defeat the action. The object doubtless, is, to state all the facts, as they really exist, or are supposed to exist, with a view to having the rights of the parties on that state of facts determined in the simplest form upon a demurrer to the complaint. Although somewhat cumbersome in a pleading in an action at law, I see no objection, the defendants making none, to taking the course pursued by plaintiff in this case, provided it has set out sufficient facts, to show upon the whole case, a good cause of action. The defendant has not moved to strike out any part, as being irrelevant or redundant, but has met the case fairly by a demurrer, both parties, doubtless, being desirous of having their rights determined in the shortest, easiest, and least expensive manner.

Taking all the facts as alleged in the complaint, I think there can be no doubt, that the title to the land in controversy is in the plaintiff, unless the allegation of the discovery of mines in 1888, is sufficient to show that the land containing them is mineral, within the meaning of the term as used in the act of congress; and, that the lands are, therefore, within the exception from the grant to plaintiff of mineral land. This being the case it becomes necessary to determine, definitely, what congress meant by the words “not mineral” in the first part of section 3, and the words “mineral lands,” in the clause “that all mineral lands be, and the same are hereby excluded from the operation of this act,” in the third proviso of the same section. And the meaning of these terms is the great question, so elaborately and ably discussed by counsel of the respective parties, upon which the decision of the demurrer, it is conceded, must turn. For the purposes of this decision, I shall assume, that the complaint shows a discovery of valuable mines in 1888, when the several claims alleged were located — such as would have taken them out of the grant, had they been known, at the time when the line of the road was definitely fixed. This question is not new to the circuit court for the northern district of California; or to the state courts of California and Nevada, as a reference to the decisions of the supreme courts of these states will show. The circuit court had occasion to consider the precise point, fully, and directly decide it in Francoeur v. Newhouse, 14 Sawy. , 40 Fed. Rep. 618, arising under the legislative grant to the Central Pacific Railroad Company, of July 1, 1862, (12 St. 489.) The words of exception in the act are “that all mineral lands shall be excepted from the operation of this act.” After mature consideration, in that case, it was held, the circuit and district judges concurring, that, the meaning of the term, “mineral lands,” as used in the exception, is, lands that were notonly mineral, in fact, at the time the grant attached and took effect, but that they must be lands that were known to be mineral, or at least, such as were apparently mineral, and generally recognized as such, 14 Sawy. 355, 40 Fed. Rep. 622. The court there said:

“The next question is, did the land in question pass, by the grant of 1862, perfected in 1866-67, in which a gold mine was discovered in 1883, twenty-one 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 pursuance of the statute, by the secretary of the interior, and more than seventeen years after the completion of the road, and its acceptance by the president; and more than sixteen years after the final survey, and report of the lands as agricultural, and not mineral. The parties to this grant, both the United States and the grantee, must be presumed to have contemplated a grant in view of the condition of the lands as they were known, or appeared to be, at the time the grant took effect. Iti the exception of ‘ mineral lands ’ from the grant, congress could not have contemplated that the discovery of a paying mine, fifteen or twenty years after the making of the grant, and the performance of all the conditions by the grantee, required to perfect the title, and render it irrevocable, should vitiate the grant. If so, then such a discovery fifty, or one hundred years after, would effect the same result. In granting the public lands, congress must be presumed to deal with them in view of the conditions as they are known, or supposed to be, at the time. Exceptions must be presumed to refer to matters that are readily apparent upon inspection. Any others would be altogether too indefinite to be valid. The conditions constituting the exception ought, certainly, to be ascertainable at the time the grant takes effect, or they ought not to be operative; otherwise, the greatest confusion and inconvenience, 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 inspection, 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 lauds soon after the grant, were conveyed, in trust, under authority of the law, as security for the bonds issued, out of the proceeds of which the road was constructed; and the proceeds of these sales are devoted by the trustees to the redemption of the bonds. Is this security to be impaired, or destroyed, by taking from the operation of the grant all lands in which at any future time gold, or other valuable metals may be discovered ¥ If so, all of the lands may, sooner or later revert to the United States, and bondholders, and those, who in good faith, have purchased the lands of the company, without being aware of the mines secluded in their lowrnr depths, will be largely injured. These words ‘ mineral lands,’ as used in the act, must be construed in a practical sense — as practical men would use them in contracting about them — must be construed with reference to their present known, or at least, obviously apparent, condition.” 14 Sawy. 355, 356, 40 Fed. Rep. 620, 621.

The circuit court had before made, substantially, the same ruling in Cowell v. Lammers, 10 Sawy. 257, 21 Fed. Rep. 200, and in Milling Co. v. Spargo, 8 Sawy. 645, 16 Fed. Rep. 348. The supreme court of the United States, although the precise question had not been necessarily presented, had by implication held the same way in the several cases referred to in the decision in Francoeur v. Newhouse, cited. Upon further consideration, I am still satisfied, upon principle, with the ruling in those cases, and think, that to hold otherwise, would be disastrous to the great interests of all the states having mines of the precious metals, and to none more so than the state of Montana. The defendants’ counsel assail the decision in Francoeur v. Newhouse, and insist that the title to no land which, in fact, contained valuable mines secreted in its lower depths at the time the grant attached to the specific lands and became perfect, passed to the company under the railroad grant, though the existence of the mineral was unknown, and unsuspected, at the time, and there was nothing to indicate that any mine was there — even though the existence of the mine could not by reasonable diligence have been ascertained. And one'of the senators from Montana, in an elaborate speech in the senate during a session of the last congress, criticising the opinion in Francoeur v. Newhouse, with great ability supported the same view. Said he, in the course of his speech:

“If one thousand years hence, a mine is discovered in an odd.section of land which it will pay to work, thereby it will be demonstrated that on the 2d day of July, A. D. 1864, congress had that particular land in view. when it said ‘ we except that mineral land out of the grant,’ and that it not only then becomes, but it is thereby demonstrated that it has always been, during the thousand years the property of the United States.” 21 Cong. Rec. p. 10946.

And a senator from California, a most skillful mining expert, and a large owner of mines in Montana, interrupted the senator’s speech with the observation, “In a thousand years from 'now, I have no doubt mines will be found in many of those lands.” Id. 10,947. Either the, doctrine of Francoeur v. Newhouse, or that stated by the senator from Montana, as quoted, must be the true doctrine. There is no middle ground upon which to stand. No middle line can be drawn, and statutes of limitations do not run against the United States. Nearly all statutes require construction. Such is the imperfection of the human intellect, and human language that it is difficult, if not impossible, to draft an act, that shall, exactly, cover every possible case contemplated by the author, and nothing more; and that his intent shall be apparent to every intelligent mind. The statute of frauds of England, drawn by one of England’s ablest lawyers, is a good illustration. It is said by English law-writers, that it has required a great many more suits to settle the meaning of the statute of frauds, than there are words in the statute. This act of congress, evidently, requires construction, otherwise there could be no possible ground for difference of opinion as to its meaning among, reasonably, intelligent persons. And it must receive a reasonably sensible construction; a reasonably practical construction; a construction that will enable reasonably intelligent men to determine at the time the grant attaches, what was granted, and what excepted from the operation of the grant; a construction that will afford reasonable certainty, as to land titles., A meaning must be given to it, that reasonably intelligent practical men would be likely to deliberately contemplate in passing the act. Such a construction I conceive was given to the Central Pacific grant in Francoeur v. Newhouse. But the construction urged by the senator, and counsel in this case, would be unreasonable in the extreme, and utterly impracticable and absurd in its consequences — a construction as it appears to me, that no sensible practical man could ever deliberately contemplate. It would be, absolutely, destructive and subversive of all titles to land in the state of Montana, and all new States wherein are similar grants; or, at least, destructive and subversive of all confidence in and security of titles. A severer blow could not well be struck at the interest and prosperity of the state, at large, of Montana, and other states similarly situated, than to adopt that construction, and thereby destroy all confidence in titles to land. Nothing is more conducive to the prosperity of a state, than unassailable land-titles, and a feeling of confidence, and a sense of security in such titles. Adopt the construction insisted upon, and no man from Lake Superior to Puget sound, within the exterior bounds of the railroad grant, whether on the odd, or even sections, would know whether he has a title to land purchased either from the government or the railroad company, until a mine either has been, or shall hereafter, at some time in the future more or less distant, be discovered on it, when he will, know for the first time, that he has no title. Indeed this state of things would not be confined to the lands of the railroad grants, but would extend to all lands in the state. Mineral lands have always been, and they are, now, excepted and reserved from preemption, homestead entry, and all other ordinary modes of disposition except congressional, in, substantially, the same language, as that in the railroad grant. Every patent issued for mineral lands to a pre-emptor, homesteader, or other purchaser, within the meaning of the exception, is utterly void and passes no title, at least, upon a direct, and not collateral attack. This is conceded by the senator from Montana, and must be by counsel. They all stand upon the same footing with the railroad company, and its grantees, except, that, the latter can do without a patent, as the title passes irrevocably by the congressional grant, and the performance of the conditions subsequent. The patent adds nothing as a title. It is only a convenient instrument of evidence, in the language of the statute “confirming not transferring to said company the right and title to said lands.”

It does not seem possible that congress, deliberately, intended to leave the titles to all lands in the new states in a state of such lamentable uncertainty, — a condition of things utterly destructive to the interests, and obstructive of the prosperity and progress of those states. The mining interests, whatever the case may now be, will, ultimately, become one of the least important. If congress had intended such unnatural and undesirable results, it could have easily expressed its intention in unmistakable language. It provided no means, and no tribunal to determine, upon examination for the purpose, what lands were mineral, within the meaning of the act. It did not require the railroad company, or anybody on behalf of the government, to prospect the lands to ascertain what were mineral. And had it done so, in most instances it would have been unavailing, so far as ascertaining the real condition of the land is concerned. Repeated prospecting, at different times, and, by different parties, in practical work, is often required to disclose a mine. Without any provision for, positively, determining what lands are mineral, for the purposes of the act, at the time the grant attaches, there can be but one reasonable and safe rule, and that is to exclude those which are known to be mineral, or which upon inspection can be readily ascertained to be mineral. The odd sections are the subject-matter of the grant, and the mineral lands in the odd sections are the exceptions. The latter are taken out of the former. Now, the exceptions should be readily identified by inspection. If they cannot be identified by inspection, they are too indefinite and uncertain to be valid, and they must be void for uncertainty. The exception must he specifically pointed out, so that it can be readily ascertained. Exceptions are strictly construed. As an illustration, take a case on a section of the road where the line of the road is definitely located; the road is finished, and all the conditions subsequent are fully performed, the road accepted, and the title to whatever is within the grant, be it more or less, irrevocably vested in the railroad company. The lands are surveyed. So far as can be known by inspection and superficial examination, the lands appear to be timber lands, agricultural lands, or grazing lands, and they are in good faith purchased as such from the railroad company, and occupied as such by the purchaser. Are these lands, so situated, against the will of the purchasers, open to wandering prospectors to enter at will upon them, dig up the earth, sink shafts, run drifts, tunnels, etc,, to see if they can find a mine? And failing to find a mine, is the land open year after year for other bands of prospectors to enter and repeat the performance ad infinitum? And should a mine, at last, after years of prospecting be found,- is the purchaser to have his land taken from him on this exception? Yet such must be the consequence of the construction insisted upon by the defendants. If one quarter section is thus open to exploration, and the title thereto liable to be thereby defeated, by a discovery of a mine at any time, no matter how long, in the future, then every foot of land within the limits of the railroad grant, and even outside these limits, from Lake Superior to Puget sound, is in the same situation, and the title liable to be defeated in the same manner. No man can ever know whether he has a title or not, until a mine is discovered, when he learns that he has no title, but that the land belongs to the United States. I cannot bring my mind to believe it possible, that men of the intelligence and sound sense of those who constitute the senators, and members of the house of representatives in congress, could have deliberately and knowingly intended or contemplated any such result. And what adequate object is to be attained by such a contraction as will destroy titles and be subversive of all confidence in titles to land in all these new states? For whose benefit is this extraordinary and hurtful condition of things to be imposed on the new states? Is it, that the government may obtain the insignificant sum of $6 per acre for a small strip of land here and there at long distances apart, not exceeding 1,500 feet long by 600 feet wide? Or is it to give a preference to purchasers at that insignificant price, over permanent settlers, who have already purchased, paid for and improved lands in good faith, to a comparatively few nomadic prospectors, who remain at the same place but a short time?

Should it turn out in course of time, that indications of mines appear, the owners will be quite as likely to prospect for and discover any mine, that may be concealed in the depths of the earth there, as the professional prospectors; and the country, at large, will, in the end, be equally benefited by the result. Is there any object to be accomplished by such an unreasonable, and impracticable construction of the grant as is claimed for it, leading to such absurd consequences, that will compensate for the great wrong and injury that must, necessarily, be inflicted on the new states by removing all grounds for confidence in land-titles? When a dispute arises as to whether the land was known mineral land when the grant attached, it may always be safely intrusted to a jury to determine the point. As an instance see the special verdict and charge of the court on the trial of this same case cited of Francoeur v. Newhouse, 14 Sawy. 600, 43 Fed. Rep. 236. When the United States made the railroad grant, in order to secure the construction of that great transcontinental road through thousands of miles of a comparatively unsettled region, it intended to offer something substantial as an inducement. It gave nothing, for as usual, it doubled the price of all alternate sections, and, by the completion of the road made a market for these lands at the enhanced price. A large development of the resources of the country was also, thereby induced. Besides the government saved millions in the cost of transporting the mails, military forces, supplies, etc. For the United States, now, years after the road has been built, and been in successful operation, to insist upon the construction maintained by defendants is to discredit all the titles of the railroad company, and of those holding titles under it; to throw insuperable obstacles in the way of selling these lands by thus discrediting the titles, and to thereby deprive the company of the substantial aid, which it had reason to believe it was to receive upon the performance of the conditions of the contract on its part. There can, possibly, no benefit result to the United States, or to any persons, or classes of persons, designed to be favored thereby, by the construction of the act of congress insisted upon by defendants, that will at all compensate for the wrong to the railroad company and its grantees, occasioned by discrediting these titles, and the blight put upon the prosperity of all those new states, by destroying and subverting all grounds for confidence in the land-titles of those states. I am, myself, still satisfied with the rule laid down in Francoeur v. Newhouse. The court did not, it is true, pass upon the Northern Pacific grant, but it did construe substantially, the same language in a strictly cognate, and analogous provision, and I do not, myself, see how it can hold differently with reference to the railroad grant now in question, without overruling its prior decision. But the supreme court of the United States, in Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628, a case but recently decided, has, as it appears to me, authoritatively, decided the question now involved, in strict accordance with the foregoing views. But for the fact, that it has been questioned by counsel, and my associate, whether this ruling, because arising under a town-site act, and not a railroad grant, is applicable to the case in hand, I should myself have supposed that the point was not open to an3r further doubt or discussion. Had it not been for this contention on their part I should have deemed it necessary, only, to refer to the case, and leave the matter there without further history of the question, and the prior discussion upon it, or further argument. The plaintiff in that case, relied upon a patent for a mine,.bearing date January 15, 1880. The defendant upon a prior patent, issued under the town-site act, for the town-site of Butte, in Deer Lodge county, Montana, dated September 26,, 1867, and conveyances from the patentee to the defendant. The latter being the earlier patent contained the clause, that “no title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper.” The town-site act, under which the patent issued, provides that “no title shall be acquired,” under its provisions, “to any mine of gold, silver, cinnabar or copper.” (Rev. St. § 2392.) And the general statute also provides: that “in all cases lands valuable for minerals shall be reserved from sale, except as otherwise directed by law.” Section 2318. At the trial, after introducing this patent for the town-site and subsequent conveyance to him, defendant offered to prove by sundry witnesses that, “at the time the patent to: the town-site was issued, the premises embraced by the Gold Hid lode were not.known to be valuable for minerals of any kind.” Objection was made to this evidence on the ground that the patent to defendants proved that the premises in fact contained valuable minerals, and therefore, could not under the statute be granted by patent for a town-site, which objection was sustained, an exception entered, and an appeal thereon taken. The question before the supreme court, and upon which the decision turned, was, whether the provision of the statute, that “no title shall be acquired” under the act “to any mine” merely, meant “any known mine;” or in other words, whether if there was no “known mine” on the land at the date of ■the patent.,, a mine existing in fact, but not discovered till'some years aft-erwards, passed by the patent, notwithstanding the express prohibitory provision in terms so broad and comprehensive, of the statute? Or whether the provision only meant “known mine?” And the supreme court held that it was limited to knoimi mines, and that the title to a valuable mine not known at the date of the patent, that is to say when the grant attached to the land, did pass under the patent, notwithstanding this prohibitory provision, so comprehensive in its terms, and, that, there was nothing left in the government to pass under the subsequent patent to those who had discovered the mine after the issue of the first patent. The court, consequently, held, that the exclusion of the evidence offered to prove that there was no “known mine” at the date of the patent, was erroneous; and it reversed the judgment on that ground alone-

It is urged, in this case, that to hold that a mine must have been kno'wn to exist at the date, when the railroad grant attached, in order to exclude it from the grant, is to unreasonably and without authority, introduce into the statute the word “known.” If that be so, then the same must be true as to the provision of exception or exclusion in the town-site act, that “no title shall be acquired” under its provisions “to any mine of gold, silver, cinnabar or copper,” construed by the supreme court, in Davis v. Weibbold. Will it be seriously said, that the supreme court unwarrantably introduced the word “known” into that act, thereby largely limiting the scope of the exception, and largely enlarging the scope of the granting power of the act, as intended by congress? If this is the result, it was not attained, and this construction of the act, was not adopted, by any hasty ill-considered action of the court, for that tribunal deliberately reached its conclusion “after much consideration.” Says the,.court:

“ When the entry of the town-site was had, and the patent issued, and the sale was 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 important question, is, whether in the absence of this knowledge the defendant can be deprived under 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. After much consideration toe have come to the conclusion that this question must be answered in the negative. It is true that the language of the Kevised Statutes touching the acquisition of title to mineral lands within thelimits of town-sites is very broad. The declaration that ‘ no title shall 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 is not the necessary meaning of the terms used; in strictness, they import only that the provisions by which the title to the land in such town-sites is transferred shall 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. They are 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 they must be held, we think, merely to prohibit the passage of title under the provisions of the town-site laws to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the town-site patent, and to mining claims and mining possessions, in respect to which proceedings have, been taken under the law or 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 exceptions of mineral lands from pre-emption and settlement and from grants to states for universities and schools, for the construction of public buildings, and in aid of railroads and other works of internal improvement, are held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining states which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term ‘ mineral’ in the sense of this statute is applicable.” 139 U. S. 518, 11 Sup. Ct. Rep. 632.

The closing paragraph shows that the court did no,t consider itself as limiting its construction to the town-site act, and such provisions, only, as have been here seriously contended, whether correctly or not, were alone in pari materia. It shows that the court considered the ruling as applicable to “grants for the construction of public buildings: m aid of railroads and other works of internal improvement,” as well as to pre-emption, town-site, etc., grants. The cases cited from the state, and circuit courts of the United States, are nearly all cases of railroad grants, and the long citation, with approbation, from Cowell v. Lammers, 10 Sawy. 246, 257, 21 Fed. Rep. 200, — a case arising under a railroad grant,— contains the passage laying down the rule as now established by the supreme court in the case cited, to-wit: “By the words ‘mineral lands’ must be .understood lands known to be such, or which there is satisfactory reason to believe are such at the time of the grant or patent.” After citing numerous rulings of the departments, the uniform decisions of the state and circuit courts, and its own implied recognition of the rule as stated in Cowell v. Lammers, and, now adopted in Davis v. Weibbold, where the decision of the point, as it is the great issue in the case, could not be avoided, the court proceeds:

“In connection with these views it is to be borne in mind also, that the object of the town-site act was to afford relief to the inhabitants- of cities and ' towns upon the public lands, by giving titles to the lands occupied by them, and thus induce them to erect suitable buildings for residence and business. Under such protection many towns have grown up on lands which previously to the patent, were part of the public domain of the United States, with buildings of great value for residence, trade and manufacture. It would be in many instances a great impediment to the progress of such towns if the titles to the lots occupied by their inhabitants were subject to be overthrown by a subsequent discovery of mineral deposits under their surface. If their title would not protect them against a discovery of mines in them, neither would it protect them against the invasion of their property for the purpose of exploring for mines. The temptation to such exploration would be according to the suspected extent of the minerals, and being thus subject to indiscriminate invasion, the land would be to one having the title, poor and valueless, just in proportion to the supposed richness and abundance of its products. We do not think that any such results were contemplated by the act of congress or that any construction should be given to the provision in question which would lead to such results. Our conclusion as already substantially stated, is, that congress only intended to preserve existing rights to known mines of gold, silver, cinnabar or copper, and to known mining claims and possessions, against any assertion of title to them by virtue of the conveyances received under the town-site act, and not to leave the titles of purchasers on the toton-sites to be disturbed by future discoveries.” 139 U. S. 525, 11 Sup. Ct. Rep. 635.

These observations as to the great impediment which the construction insisted upon by defendants, would throw in the way. of the prosperity of towns, apply, as we have already seen, with, at least, equal if not greater force with reference to the obstruction to the progress and prosperity of the state at large, should that construction be adopted as to the railroad grants in question. If the decision in Davis v. Weibbold, does not, strictly, apply to, and, fully, cover the question we are now called upon to decide, I confess I do not know to what it does apply, except to another case arising under the same town-site act, wherein the mines were discovered, located, and patented years after the issue of the patent to the town-site. The court intimates no such limitation. It refers to the various forms of the exception in the various acts making grants for public improvements, universities, railroads, and acts excluding mines from preemption, and homestead acts, dc., and cites the decisions arising under them all, tending in the same direction, as though they all stood upon the same footing, as they, evidently, do. Each only provides for carrying out the public policy of the nation to exclude mineral lands from the operation of all these statutes. Though differently expressed, in the different acts, they, all were intended to accomplish the same object, and all mean the same thing. What difference can there bo in the meaning of the following phrases found in different acts? “That all mineral lands, be and the same are hereby excluded from the operation of this act.” N. P. Co. grant act, (13 St. 367, § 3.) “That all mineral lands shall be excepted from the operation of this act.” C. P. E. Co. grantact, (12 St. 492, § 3.) “In all cases, lands valuable for minerals shall be reserved from sale, except as otherwise, expressly, directed by law.” Rev. St. 2318. “No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper.” Town-site act, (Rev. St. 2392.) “No lands on which are situated any known salines or mines shall be liable to entry under and by virtue of the provisions of this act.” Pre-emption law of 1841, (5 St. 456, carried into Rev. St. § 2258.) Now all these acts with reference to the questions now under consideration appear to me to be in pari materia, and I am satisfied that they were intended to carry out the same line of public policy, and were intended to mean the same thing. The first act of 1841, says “known salines or mines;” and such, doubtless with reference to mines was what was intended by the subsequent acts. If there is any difference in the other provisions on this point, the town-site act is stronger against the construction adopted by the supreme court than those in the railroad acts, as it forbids the acquisition of title “to any mine of gold,” etc., — no one mine can pass. But the same constructions as to this point must bo given to all these provisions. There can be no distinction made. In my judgment therefore, the decision in Davis v. Weibbold, covers, and concludes, this case. This case also affirms the ruling in Cowell v. Lammers, 10 Sawy. 246, 21 Fed. Rep. 200, and in Deffeback v. Hawke, 115 U. S. 392, 406, 6 Sup. Ct. Rep. 95, that the insertion in a patent of an exception, not expressly authorized by law, is void.

A question has also been suggested in this case, as to when there must be a “known mine” in order to take it out of a grant to the railroad company under the exception in the grant? The four points of time suggested, are, the date of the act of congress making the grant; the time of the filing of a map of the general route; the time of the definite location and filing a plat thereof in the office of the commissioner of the general land-office, and the date of the issue of a patent. The ruling of the circuit court for the district of California, heretofore has been, that the date of the definite location of the line of the road, is the date at which the mineral character of the land must be known, in order to take it out of the grant. Thus upon the trial of Francoeur v. Newhouse, the court so charged the jury. . The following is the language of the charge:

“The words ‘mineral lands,’as used in the act of congress, mean lands known to be mineral at the time the grant took effect, and attached to the specific land in question, or which there was satisfactory reason to believe were such at said time. Only such land as was known to be mineral, or which there was satisfactory reason to believe was mineral at the time the grant attached to the land, is excepted from the grant. * * * The question then arises, whether or not they were known, or there was sufficient reason to believe, at the time this grant attached — and that is when the line of the road became definitely fixed, according to my construction of the act — to be mineral land.” 14 Sawy. 603, 604, 43 Fed. Rep. 238.

Until that time the grant is a float, and does not attach to any particular land. No one, till then, can know upon what land the grant will, ultimately, fall. Up to the definite fixing of the line of the road, it is all public land, and there is nothing to prevent any interest recognized by this law, not otherwise prohibited, from being acquired. The railroad company up to that time has acquired no interest in any specific odd section of land; but at the moment the line is definitely fixed, and a plat filed in the office designated by law, the grant attaches itself to all odd sections not embraced in any of the exceptions; and the title of the company becomes indefeasible except by a failure to perform the conditions subsequent, and the taking of proper means to forfeit the grant by the government. Upon the performance of the conditions, the title in the company, before, in a certain sense inchoate, becomes perfected and indefeasible. If none of the exceptions are operative to prevent the title from vesting when the line is so definitely fixed, of course, the title takes effect, by relation from the date of the act, without affecting any other vested interest whatever. But if the land is within one, or more, of the exceptions, at the time the grant would, otherwise, attach, it is taken out of the grant altogether, and nothing passes, either present, or by relation to the date of the granting act. Thus, if an odd section is.known mineral land, at the date when the gránt would otherwise attach, it is not within the.grant, and no vested interest is affected, either present, or by relation. So, under section 6, which protects the lands for the company within 40 miles of the general line after it shall be fixed, from sale, entry or pre-emption by other parties, till the company can, definitely, fix its line, does not prevent the discovery of a mine, or prevent a mine from becoming known at any time before the line is definitely fixed, as prescribed by law; and should there be a known mine, when the company’s grant attaches to the specific lands by definitely fixing its line, I apprehend, that it would not pass by the grant, whether anybody else, by “ purchase, entry or pre-emption,” could acquire an interest in the known mine or not. There is no provision in the act against the discovery of a mine, or against a mine becoming known during the withdrawal from sale, in such sense as not to bring it within the exceptions of the grant to the railroad company, and thus take it out of the operation of the grant. And when a discovery of a mine is once made, before the grant attaches, the land is at once brought within the exception, and taken out of the scope of the grant, and is no longer within the prohibitory clause of section 6, and it is not perceived why a mining claim may not be at once located. It can no longer be regarded as one of “the odd sections of land hereby granted,” within the meaning of the provision of section 6 that “the odd sections hereby granted shall not be liable to sale, or entry, or pre-emption,” except to the company. • The following passage from the decision of Davis v. Weibbold, referring to a former decision would seem to reach and cover this point. Says the court:

“We stated there that land embraced within a town-site on the public domain, when unoccupied, was not exempt from location and sale for mining purposes, and referred to the fact that some of the most valuable mines in the country were within the limits of incorporated cities, which had grown up on what was on its first settlement a part of the public domain. We were speaking at that time of town-sites for which no patent had been issued, and of mines in public lands, for immediately after using these expressions, we said: ‘ Whenever, therefore, mines are found inlands belonging to the United Slates, whether within or without town-sites, they may be claimed and worked, provided existing rights of others, from prior occupation, are not interfered with. ’ ”

If this view be correct, and I think it is, then the ground of the objection suggested that the limitations of the exception of the grant to mines known at the date when the grant attaches by a definite fixing of the line of the road, would take from the holders all mines discovered between the date of the act of July 2, 1864, and the definite location of the road, 18 years thereafter, on July 6,1882, fails; for such mines, so discovered, and known before July 6,1882, would be excluded from the grant, by the exception.

It has been urged, also, that, in some instances, the line of the road, as finally definitely located, and fixed, and upon which it is now constructed, is not within 100 miles from the general line at first fixed, and under the provisions of section 6, the lands within 40 miles of which were for the time being withdrawn from “sale, or entry or pre-emption” except by the railroad company; and that the construction insisted upon by defendants, would be disastrous to all parties, discovering, and locating, mines within that 40-mile belt from the date of the act till the final definite location of the line in 1882. But this objection is answered by what is said in the last paragraph, that there is no provision in the act against mines becoming known, at any time, before the grant attaches by the definite location. If the mines are then known, they fall within the exception. Besides, the moment the line of the road becomes, definitely fixed, in the mode prescribed by the act, no matter when it is, the lands within 40 miles of the general line, not within the prescribed distance from the line as finally definitely fixed, are, necessarily, discharged from the disabilities imposed in section 6, for they, thereafter, never can become “the odd sections of land hereby granted,” within the meaning of that section. The decision in Davis v. Weibbold, also, affirms the ruling in Francoeur v. Newhouse, 14 Sawy. 358, 359, 40 Fed. Rep. 618, that a patent issued to land in which the title has already passed out of the United States, is utterly void, and may be shown to be void even in an action at law to recover the land. If it is necessary that the land should be known to contain valuable mines in order to bring it within the' exception of the grant, then in opposition to the rule herein-before expressed, it is insisted that the point of time when the land should be known to be mineral, in order to exclude it, is, not when the line of the road is definitely fixed, but the time when the patent issues —that the title to the land does not vest until the issue of the patent, and the character of the land, as it is then known, or supposed to be, is to control. The passage from the decision of the circuit court in Cowell v. Lammers, 10 Sawy. 257, 21 Fed. Rep. 200, that “there must be some point of time, when the character of the land must be finally determined, and, for the interest of all concerned, there can be no better point to determine the question, than at the time of issuing the patent,” is quoted, to sustain this view. This observation; perhaps a little too general, was made with special reference to the facts of that case, wherein, the railroad company had not only fixed its line, and completed its road, but a patent had issued to it in conformity with the statute, covering the mine, years before the mine was discovered, and located. The title therefore had not only vested under the legislátive grant, but the question as to the right of the company to the land as being non-mineral, had been determined in its favor, and the grant was confirmed by the patent, while the locator of the mine had nothing as evidence of title. He had simply by a trespass upon lands, thus determined to be private properly, discovered, and located a mine. He was, therefore," in no position to, collaterally, assail the title of the plaintiff, as is -well settled by numerous decisions of the supreme court. It was with reference to this condition of things, that the observation was made, proper enough, as applicable to the facts of that case, but certainly not intended to impugn the decision of the supreme court, as to the time, when the title to the lands, under the statute, actually first vested in the railroad company. That the title vests upon the definite location of the road, subject only to be defeated by failure to perform the conditions subsequent and proper measures thereupon taken to forfeit the grant, had been so often decided by the supreme court, that it did not seem open to further argument. Yet, the question was again raised under the identical act now in question, in the case of St. Paul, etc., R. Co. v. Northern Pac. R. Co., 11 Sup. Ct. Rep. 389, (recently decided,) and that construction was emphatically reaffirmed. If possible, the point of the ruling is stated in more perspicuous and unmistakable language than in any former case; and I shall, therefore, quote liberally from the decision, as it appears to place beyond all possible grounds of doubt, the "time when the lands must be known to be valuable for its minerals, in order to bring them within the exceptions of the legislative grant. Says the court:

“ As seen by the terms of the third section of the act, the grant is one in prcesenti, that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, pre-emption, or other disposition previous to the time the definite route of the road is fixed. The language of the statute is ‘that there he and hereby is granted ’ to the company every alternate section of the lands designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense, that the grant is termed one in prcesenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route.” 139 U. S. 5, 11 Sup. Ct. Rep. 390.

Thus, it is said, the language—

“Implies that the property itself is passed, not any specific or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in future. * * * The title does not attach to any specific sections until they were capable of identification, but when once identified, the title attached to them, as of the date of the grant, except as to such sections as were specially reserved. It is a grant ‘ in prcesenti,’ as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the grant.”

Is it possible to express, more clearly, the idea maintained in this opinion, as to when the grant attached and title passed, and, consequently, when the lands must be known to be mineral, in order to bring them within the exceptions of the grant? And lands known to be mineral, as the provision is construed by the supreme court, and, then only, are the lands excluded on the ground that they are mineral. Again, says the court:

“It is contended that they are qualified and restricted by the provision of the fourth section, that whenever 25 miles of the road are completed in a good, substantial and workman-like manner, and the commissioners appointed to examine the same have made a report to that effect to the president, patents shall be issued ‘confirming to said company the right and title to said lands situated opposite to and coterminous with said completed section of said road.’ This provision, it is urged, is inconsistent with the theory that a title to the lands had previously vested in the company. We do not think so.” 139 U. S. 6, 11 Sup. Ct. Rep. 390.

Thus, the court recognizes the fact, that the provisions of the act as to issuing patents, describes the patent as only “confirming” the title already vested, not as, originally, granting, or passing the title. And again:

“The construction we give to the granting terms of the act, as qualified by subsequent provisions, not only secures the application of the property to the construction of the road and telegraph line, and thus carries out the purposes of the government, but also secures the company against any attempted alienation of the land to other parties.” 139 U. S. 7, 11 Sup. Ct. Rep. 391.

Thus, the legislative grant in prsesenti, in the act, “secures the company against any attempted alienation of the land to other parties.” So, in Davis v. Weibbold, already cited, reaffirming prior decisions, the court says:

“We agree to all that is urged by counsel as to the eonelusiveness of the patents of the land department when assailed collaterally in actions at law. We have had occasion to assert their unassailibility in such cases in the strongest terms, both in Smelting Co. v. Kemp, 104 U. S. 636, 640-646, and in Steel v. Smelting Co., 106 U. S. 447, 451, 452, 1 Sup. Ct. Rep. 389. They are conclusive in such actions of all matters of fact necessary to their issue-, where the department had jurisdiction to act upon such matters and to determine them; but if the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale, or other disposition, or they had been reserved from sale, the department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed. In the several cases to which we have been referred in. the fifth .and sixth Montana Reports, (Milling Co. v. Clark, 5 Mont. 378, 5 Pac. Rep. 570; Talbott v. King, 6 Mont. 76, 9 Pac. Rep. 434; Butte City Smoke-House Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858,) which involved contests between parties claiming under mining patents and others claiming under town-site patents, and in which very able and learned opinions were given by the supreme court of the territory of Montana, the mining claim patented had been located and the rights of the mining claimant had thus attached before the town-site patent was issued. The patent, which, subsequently, followed was a mere perfection of the right originated by the location, and to which it took effect by relation. It was held in accordance with this opinion, that the prior mining location was not affected by the town-site entry.” 139 U. S. 529, 11 Sup. Ct. Rep. 636.

So, that, in this class of cases, the ascertainment, and final determination as to the mineral character of the land, as against the company, cannot, as contended be left to the commissioner on the issue of the patent. And if the determination be so made, his decision against the company would not be conclusive, as to whether the title to the land had or had not already passed out of the United States under the congressional grant. A patent wrongfully issued to others, however, could be collaterally attacked, by the company on its patent, even in an action at law, and the company without a patent could stand upon its legislative grant attaching upon the definite location and completion of the road as required by the act, even against subsequent patents, wrongfully, issued to other parties. Indeed the commissioner is not in a position, in this class of cases, to summon witnesses and, intelligently, investigate, and finally decide the facts as to the mineral character of all the odd sections of lands, either at the date of the attaching of the grant, or of the issue of the patent; and if he were invested with such final jurisdiction, the point of time to which the investigation should be directed, would be, the date when the line of the road became definitely fixed, and a plat thereof filed in the office of the commissioner of the land-office — the date at which the grant became attached to the specific sections of land, and not the date of the issue of the mere confirmatory patent. Again on his views of the law, the commissioner often refuses to issue patents to the railroad company in cases where it is entitled to them. In such cases the company would have no remedy, as to those Lands, unless the foregoing views are correct. There could then be no patent to settle the question.

Under these various decisions of the supreme court, and others cited by that tribunal, with approbation, I am satisfied that to exclude the lands from the operation of the grant, they must be known to be mineral at the date when the Une of the road becomes definitely fixed, and a plat thereof filed in the general land-office, — in this case on July 6, 1882, — and that the demurrer to the complaint must be overruled. My associate dissents in a very able opinion, in which he very, forcibly, and lucidly, presents, as it seems to me, all that can be said in opposition to the views herein expressed. My own conclusions, however, I have reached after repeated and thorough examination, and I cannot see the case in any other light. The points of difference between us, therefore, must be left to the supreme court, to authoritatively, determine.

This, I believe, is a representative case — several others depending upon its decision. ■ I suppose the facts in the complaint are alleged as they must turn out in the proofs. If that be so, then a default might be safely suffered, and a judgment entered before the 1st of July, and an appeal taken to the United States supreme court. Otherwise, the appeal will go to the circuit court of appeals. It is desirable that a question affecting interests so vast should be determined by the highest court in the land. Under the provisions of section 650, Iiev. St., w’heu there is a difference of opinion between the circuit and district judges, sitting together, the opinion of the presiding judge prevails for the time being. In pursuance of these provisions, let the demurrer to the complaint be overruled, and the defendants have 10 days within which to file their answer.