States the lands in the reservation hereby created, also the lands in the Pacific Forest Reserve which have been heretofore granted by the United States to said company, whether surveyed or unsurveyed, and which lie opposite said company's constructed road, said company is hereby authorized to select an equal quantity of nonmineral public lands, so classified as nonmineral at the time of actual government survey, which has been or shall be made, of the United States not reserved and to which no adverse right or claim shall have attached or have been initiated at the time of the making of such selection, lying within any State into or through which the railroad of said Northern Pacific Railroad Company runs, to the extent of the lands so relinquished and released to the United States: Provided, That any settlers on lands in said national park may relinquish their rights thereto and take other public lands in lieu thereof, to the same extent and under the same limitations and conditions as are provided by law for forest reserves and national parks.

A properly executed deed releasing and conveying to the United States the lands described in said section 3 having been filed July 25, 1899, by the Northern Pacific Railway, successor in interest to the Northern Pacific Railroad Company, the Department accepted the same July 26, 1899, and thereupon declared the company to be authorized to select lieu lands as provided in that section.

October 29, 1900, Ulfers Brown filed an application to purchase, as coal land, under section 2347 of the Revised Statutes, the land selected by the company, which application was rejected the same day by the local officers because of its prior selection by the company. Brown appealed from the adverse action of the local office, contending that the land in controversy is coal land and, as such, not subject to selection by the company under said section 3, and that therefore his application should not have been rejected. Your said office decision affirms the rejection of Brown's application because of the appropriation of the land upon the records of the local office by the company's selection, but also finds that the government survey of the land classified it as coal land, which is held to be, in effect, a classification thereof as mineral land, and that therefore it was not subject to the company's selection, and, as already stated, required the company to show cause or to appeal.

The company contends (1) that the land selected was not classified as coal land at the time of survey, and (2) that even if it be found that it was classified as coal land such classification did not amount to a classification of the land as mineral within the meaning of said section.

The township in which the tract selected by the company is situated was surveyed in the field in 1883, and the survey thereof approved February 18, 1884. In the field notes of the survey of the south and east boundaries of the township, the township is described as

all mountainous, rough and broken. It is one immense coal field and is valuable for that article as well as its timber, which is very fine and dense.

In the field notes of the survey of the subdivisional lines of the township the following description is given:

This township is a high, mountainous country from 2000 to 4000 feet above tide water; is densely timbered with fir, hemlock, cedar and some pine, with undergrowth of young fir, hemlock, huckleberry, vine maple and some salal.

There is but little if any agricultural land in the township; it is only valuable as mineral and timber land.

An especial feature is the many indications (croppings and float) of coal, which are found in every section in the whole township.

These descriptions from the approved field notes clearly constitute a return or classification by the surveyor general of the entire township, and each legal subdivision thereof, as coal land. It is quite evident that the term "mineral" used in the second description is intended to refer to the only mineral specifically mentioned in the field notes, that is, coal. It does not, so far as this case is concerned, in any measure affect the force of the mineral or coal return that the township is also returned as valuable timber land. The two returns are not incompatible. Valuable coal measures are very frequently found in land which produces also valuable timber. It is not necessary here to institute any inquiry as to the comparative values of the coal and the timber. It is enough upon the question as to the classification of the land that it is returned as valuable for coal. That coal lands are by authority of Congress classed as mineral lands, see the case of T. P. Crowder (30 L. D., 92, 95), and the cases there cited.

While in effect conceding that within the meaning, generally, of the laws relating to the public lands, coal lands are classed as mineral lands, the second contention of the company is that inasmuch as the original grant to the company's predecessor in interest (act July 2, 1864, section 3, 13 Stat., 365, 368), in excluding mineral lands "from the operations" thereof, provided that the word "mineral" therein should not be held "to include iron or coal," a similar limitation, at least so far as coal is concerned, is to be regarded as existing in section 3 of the said act of 1899.

This contention the Department does not believe to be sound. The act of 1899 is not dependent in its operation in any manner upon the act of 1864 beyond the mere reference to the latter act to determine what lands were embraced in that grant. The act of 1899 recognizes the grant by the act of 1864 as a thing complete and settled. It proposes an exchange of public lands for the company's granted lands. within the Pacific Forest Reserve, and in the reservation thereby created, that is, the Mt. Ranier National Park. The terms and conditions of this exchange are completely expressed in the act providing therefor. It is unnecessary to resort to any other legislation for the meaning thereof. Upon the due release and conveyance of the described granted lands to the United States the company is authorized

to select an equal quantity of nonmineral public lands, so classified as nonmineral at the time of actual government survey, etc.

66

These selections are authorized to be made within any State into or through which the railroad of said Northern Pacific Railroad Company runs," instead of being confined within the much narrower limits prescribed by the granting act of 1864 for indemnity selections thereunder. The selections authorized by the act of 1899 are not indemnity selections in any proper sense but are lands received in exchange for lands surrendered and reconveyed to the United States. If the company's contention is sound it is authorized to search throughout the State into or through which its railroad runs and select public iron and coal land only, if the same can be found in sufficient quantity to satisfy the requirements of the act. It is not believed that Congress intended to confer any such right upon the company.

The decision of your office rejecting the company's said selection is accordingly affirmed. In view of this action the local office will place Brown's application for the land of record as of the date hereof, if upon examination the same be found regular in all respects.

RAILROAD GRANT-WITHDRAWAL-LANDS EXCEPTED.

NORTHERN PACIFIC RY. Co.

Lands within ten miles of the probable route of the Lake Superior and Mississippi railroad, included in the withdrawal on account of the grant to aid in the construction of said road at the date of the passage of the act making the grant to the Northern Pacific Railroad Company, were not "public lands," and for that reason were excepted from the Northern Pacific grant.

A reservation on account of a prior grant will defeat a later grant, like that made in aid of the Northern Pacific railroad, without regard to whether the lands are needed in satisfaction of the prior grant.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

July 16, 1901.

(F. W. C.)

The Northern Pacific Railway Company, successor in interest to the Northern Pacific Railroad Company, has appealed from your office decision of April 6, last, wherein it was held that certain described lands in the Duluth land district, Minnesota, and within the primary limits of the grant made by the act of July 2, 1864 (13 Stat., 365), in aid of the construction of the Northern Pacific railroad, were excepted from the operation of said grant because they were, at the date of the passage of said act, within ten miles of the probable route of the Lake Superior and Mississippi railroad, in aid of the construction of which a grant was made by the act of May 5, 1864 (13 Stat., 64), and were embraced within the withdrawal of May 26, 1864, made on account of the said last-mentioned grant.

Upon the adjustment of the limits of the grant made by the act of May 5, 1864, supra, to the line of definite location of the Lake Superior and Mississippi railroad, effected September 25, 1866, by the filing

and appoval of the required map, the lands here in question were found to fall without said limits and were thereupon freed from said grant. The Northern Pacific railroad was not definitely located opposite these lands until July 6, 1882, at which date they were free from adverse claim so far as shown by the record now before this Department.

The appeal filed on behalf of the railway company is based upon the ground that the withdrawal of May 26, 1864, being a withdrawal upon a map of probable or general route, did not prevent Congress from granting the lands so withdrawn in aid of the construction of the Northern Pacific railroad, and that they were included in the grant to that company made by the act of July 2, 1864, because falling without the limits of the grant made by the act of May 5, 1864, as established by the definite location of the Lake Superior and Mississippi railroad, no right ever attached to them under the earlier grant. The decision of the court in the case of United States v. Oregon and California R. R. C. (176 U. S., 28), is relied upon to sustain this claim.

In the case of Bardon v. Northern Pacific Railroad Co. (145 U. S., 535), one Robinson had settled upon a portion of an odd-numbered section within the limits of the grant made by the act of July 2, 1864, for which he filed a pre-emption declaratory statement on September 21, 1853. He died without making proof and payment under said filing, and on July 30, 1857, his heirs made payment for the land and certificate of purchase issued thereon. On August 5, 1863, said certificate and pre-emption filing were canceled. In holding that said land was excepted from the operation of the grant here in question, it was said by the court:

It is thus seen that when the grant to the Northern Pacific Railroad Company was made, on the 2d of July, 1864, the premises in controversy had been taken up on the pre-emption claim of Robinson, and that the pre-emption entry made was uncancelled; that by such pre-emption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All lands, to which any claims or rights of others have attached, do not fall within the designation of public land. The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the Interior. There would therefore be no question that the pre-emption entry by the heirs of Robinson, the payment of the sums due to the government having been made, as the law allowed, by them after his death, took the land from the operation of the subsequent grant to the Northern Pacific Railroad Company, if the pre-emption entry had not been subsequently cancelled. But such cancellation had not been made when the act of Congress granting land to the Northern Pacific Railroad Company was passed; it was made more than a year afterwards. As the land pre-empted then stood on the records of the land department, it was severed from the mass of the public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to 6855-Vol. 31—01—3

land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court.

See also Northern Pacific Railroad Co. . De Lacey (174 U. S., 622, 626).

Applying this ruling to the lands now in question, they were at the time of the grant to the Northern Pacific Railroad Company included within an existing and lawful withdrawal made in aid of a prior grant and were therefore not subject to sale or other disposition under general laws. They were not "public lands" within the accepted meaning of those words (Barker v. Harvey, 181 U. S., 481, 490) and were not within the terms of the grant to the Northern Pacific Railroad Company, which was of "every alternate section of public land."

While the decision in the case of United States ». Oregon and California Railroad Company, cited by appellant, gives color to appellant's contention, it must be remembered that in that case the lands in controversy were not reserved under the prior grant or at all until after the date of the later grant under which they were held to have passed. They were public lands at the time of the later grant which was held to have embraced them. The case of Bardon v. Northern Pacific R. R. Co., supra, and kindred cases, were not referred to in the opinion of the court, and it can not be presumed that by any general discussion upon an immaterial point the court intended to overrule the Bardon and kindred cases.

That a right under the prior grant did not eventually attach to the lands here in question is immaterial: first, because the act of July 2, 1864, was a grant in praesenti, and second, because a reservation on account of a prior grant will defeat a later grant like that of July 2, 1864, whether the lands are needed in satisfaction of the prior grant or not. Northern Pacific R. R. Co. . Musser-Sauntry Co. (168 ». U. S., 604.)

Your office decision is accordingly affirmed.

SCHOOL LAND-INDEMNITY-CHARACTER OF LAND.

BOND ET AL. . STATE OF CALIFORNIA.

In school indemnity selections the lands in lieu of which indemnity is claimed should be described according to their legal subdivisions.

Where school lands in lieu of which indemnity is claimed on the ground of their saline character are not shown to have been lost to the State by reason of their known mineral or saline character at the time of survey, a hearing should be had to determine their known character at such time.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

July 17, 1901.

(E. B., Jr.)

February 15, 1898, the State of California filed indemnity school land selection No. 1854 for the SW. and the NW. NE. 4, Sec. 22;