Dissenting Opinion: Brewer, Gray, Shiras, JJ.

of the defendant is not supported. Those terms import the transfer of a present title, not one to be made in the future. They are that there be and is hereby granted' to the company every alternate section of the lands. No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions, a position to be presently considered.

"In a great number of cases grants containing similar terms have been before this court for consideration. They have always received the same construction, that unless the terms are restricted by other clauses, they import a grant in præsenti, carrying at once the interest of the grantor in the lands described. Schulenberg v. Harriman, 21 Wall. 44; Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733.

"In Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496, 507, referring to the different acts of Congress making grants to aid in the construction of railroads, we stated that they were similar in their general provisions, and had been before this 'court for consideration at different times, and of the title they passed we said: "The title conferred was a present one, so as to insure the donation for the construction of the road proposed against any revocation by Congress, except for non-performance of the work within the period desig nated, accompanied, however, with such restrictions upon the use and disposal of the lands as to prevent their diversion from the purposes of the grant.'

"As the sections granted were to be within a certain distance on each side of the line of the contemplated railroad, they could not be located until the line of the road was fixed. The grant was, therefore, in the nature of a float;' but, when the route of the road was definitely fixed, the sections granted became susceptible of identification, and the title then attached as of the date of the grant, except as to such parcels as had been in the meantime under its provisions appropriated to other purposes.

Dissenting Opinion: Brewer, Gray, Shiras, JJ.

"That doctrine is very clearly stated in the Leavenworth case cited above, where the language of the grant was identical with that of the one under consideration, and the court said: 'There be and is hereby granted,' are words of absolute donation and import a grant in præsenti. This court has held that they can have no other meaning, and the land department, on this interpretation of them, has uniformly administered every previous similar grant. They vest a present title in the State of Kansas, (the grantee named,) though a survey of the lands and a location of the road are necessary to give precision to it and attach it to any particular tract. The grant then becomes certain, and, by relation, has the same effect upon the selected parcels as if it had specifically described

them.

"The terms used in the granting clause of the act of Congress, and the interpretation thus given to them, exclude the idea that they are to be treated as words of contract or promise rather than, as they naturally import, as words indicating an immediate transfer of interest. The title transferred is a legal title, as distinguished from an equitable or inchoate interest."

It is a misconstruction of the decision to say that the court only held that an action could be maintained for the possession of lands not mineral. For it was neither alleged nor proved that the lands were not mineral, but simply that at the date of the definite location they were not known to be mineral. The same allegation and proof could have been made in this case if the action had been brought two years before the discovery of the mineral and four years after the definite location, and the court then, under the authority of the Tarpey case, would have been compelled to sustain a judgment in favor of the company, declaring it the owner of the land, while now it enters the very opposite judgment that the company is not the owner. So, in the Tarpey case, if the day after the opinion of this court had been announced some enterprising explorer had discovered a mine of value within. the limits of the tract in controversy in that case, following this opinion the court would have been compelled to hold that

Dissenting Opinion: Brewer, Gray, Shiras, JJ.

the company had no title, never had had any title, although it had affirmed a judgment declaring that it had the title. It is impossible to uphold such a difference of ruling on anything equivalent to a condition subsequent. For as beld in Schulenberg v. Harriman, 21 Wall. 44, no one can take advantage of the non-performance of such a condition but the grantor or his heirs or successors, and the government has taken no action in respect to the title to this tract since the discovery of the mineral.

These decisions could be supplemented by a score and more in which the same doctrine has been affirmed and reaffirmed antil, as said in the quotation first above made, "it is so well settled as to be no longer open to discussion." All these authorities are in effect wholly overthrown by this decision, for there is no identification of the lands passing by the grant unless it is known and can be known at the time what lands pass. Take any particular mile of the road; on either side of the line, as located, there are twenty alternate sections within the place limits. By the rule now laid down, the title to no one of these twenty sections passes to the company, because it is not known absolutely which are mineral lands. So far as known, none may be mineral, and yet, as in this case before us, six years after that line of definite location an exploration develops the fact of minerals, and then it is declared that the title did not pass. When you simply say, as the court does in this opinion, that out of those twenty sections there shall pass the title to such lands as shall thereafter be found or be determined by the Secretary of the Interior to be non-mineral lands, you say in effect that there is no identification of a single tract. This court has hitherto said that when the line of definite location was fixed the lands granted were identified. That means, if it means anything, that the particular tracts which passed by the grant were disclosed. Now it is said that they are not disclosed, and cannot be identified as passing by the grant until it shall be affirmatively proved that they do not contain mines, or the Secretary of the Interior has determined that they are not mineral lands. There is, therefore, at the time no identification of the particular lands which

Dissenting Opinion: Brewer, Gray, Shiras, JJ.

pass, as has always heretofore been declared. It is true, as suggested, that it is no uncommon thing to make a grant of lands with a reservation of mines or minerals, and if such were the reservation in this case there would be no question as to the matter of identification; but there is in this case no reservation of mines or minerals; no land passes with a reservation of anything underneath the surface. There is simply an exception of mineral lands from the operation of the grant, and there has got to be something to separate and distinguish one class of lands, to wit, mineral lands, from the other, non-mineral lands, before there is any identification as to any lands. So, unless there is that which, at the time of the definite location, distinguishes lands non-mineral from lands mineral, there is no identification of any particular tract as passing under this grant.

In the case of Davis's Administrator v. Weibbold, 139 U.S. 507, 524, this court said:

"It would seem from this uniform construction of that department of the government specially entrusted with supervision of proceedings required for the alienation of the public lands, including those that embrace minerals, and also of the courts of the mining States, Federal and State, whose attention has been called to the subject, that the exception of mineral lands from grant in the acts of Congress should be considered to apply only to such lands as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction."

And again on page 519:

"The exceptions of mineral lands from preëmption 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 improvements are not 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."

It is probably unnecessary, in view of this declaration as to the uniform construction by the Land Department, to refer to

Dissenting Opinion: Brewer, Gray, Shiras, JJ.

any specific rulings therein, and yet the following illustrations may not be amiss: By the act of March 3, 1853, (10 Stat. 244,) it was provided (sec. 6) " that all the public lands in the State of California, whether surveyed or unsurveyed,

ex

cepting also the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the preëmption laws of fourth September, 1841, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided." In a circular of instructions issued to the registers and receivers in California, October 12, 1853, construing this act, Commissioner Wilson defines the above exception of "mineral lands" as "lands on which are situated any known salines or mines." (1 Lester's Land Laws, p. 698.)

In State v. Poley & Thomas, (± Copp's L. O.,) this question, as stated by Secretary Schurz, was presented, arising under the Congressional grant of school lands to the State of California:

"Did the title to lands in said sections vest in the State, upon survey, if their mineral character was unknown at the time, and the same were regarded by the officers of the government as ordinary public lands, not reserved or otherwise appropriated, but subject to disposal under the general laws of the United States?"

And this was his answer:

"In compliance with the doctrine established by the courts, it must, I think, be held that the title vested in the State at the date of the survey, when the land was not known to be mineral, or was not treated as such by the government. If, following the doctrines of the courts, the grant of school lands takes effect at the date of survey, can the character of the land, subsequently determined, change or affect said title? If it can, for how long a period can such change be affected? If for three years, why not for ten or fifty, or after the title derived from the State has been transmitted through numerous grantees? For lands confessedly not mineral at the date of survey, may, many years thereafter, be ascertained, through the improvements in mining operations, to be valuable as mineral lands. To maintain such a doctrine might result in