"the same, which fact shall be stated in all patents "issued under this act. But no such mine shall be "worked on any property confirmed by this act without "the consent of the owner of such property, until specially authorized thereto by an act of congress here"after passed."

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Whatever may be the proper interpretation to be placed upon this proviso on final analysis, it might seem from a casual reading to foreshadow a radical departure from the previous policy of the government. All reservations heretofore made or authorized by congress, with the exception of "known mines," in the pre-emption act of 1841, and "veins," or "lodes," in the townsite act of 1865, have been of the lands containing mineral, not the mineral within the lands. The effect of these new provisions and the construction of the patents to be issued under them will be duly considered at the proper time.

119. Claims to mines asserted under the Mexican mining ordinances. -It may be conceded on the threshold that where a valid claim to a mine or a mining right existed prior to the cession within the territory ceded, such right was to be respected, and should have been determined in the same manner as claims to other land were determined.1 We are not aware of any such claim ever having been thus far successfully established.

But few were ever asserted in California; and, of course, the time for such assertion has long since elapsed. Only two strictly mining titles were presented for confirmation to the court of private land claims created under the act of March 3, 1891. Both of these were rejected upon the ground that the officer of the former government purporting to make the grant had

1 Castillero v. United States, 2 Black, 17. Lindley on M.-12

no authority to make it. Therefore, we have no further concern with this class of claims. We are to deal only with rights asserted to lands claimed either under the colonization laws of Mexico or for agricultural, pastoral, and kindred purposes.

% 120. Status of grants considered with reference to condition of title. The status of lands embraced within claimed Mexican grants pending the investigation and determination of title and defining boundaries depended to some extent upon the nature of the grant,that is, whether it was perfect or inchoate, had definitely fixed boundaries, or was simply a float, -and also to a greater degree upon the policy of congress expressed from time to time in its legislation on the subject. This will be made manifest as we proceed with the discussion. So far as the inquiry is pertinent to the questions considered in this treatise, Mexican grants may be considered in four different aspects:

(1) Grants sub judice-that is to say, awaiting final confirmation and determination of boundaries;

(2) Grants confirmed finally by action of the judicial tribunals under the California act, and the boundaries fixed;

(3) Grants confirmed by direct action of congress; (4) Grants which have been confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona.

Let us consider these in the order named.

121. Grants sub judice. -With respect to all classes of Mexican grants, it may be said that they were sub judice until the title had been established and the boundaries finally defined by the tribunals charged with these functions, or the right finally declared invalid

and without foundation, or until the period fixed by the various acts requiring presentation to the respective tribunals passed without such presentation having been made.1

122. Different classes of grants. —Mexican grants were of three kinds :

(1) Grants by specific boundaries, where the donee is entitled to the entire tract;

(2) Grants of quantity, as of one or more leagues within a larger tract, described by what are called outside boundaries, where the donee is entitled to the quantity specified and no more;

(3) Grants of a place or rancho by name, where the donee is entitled to the whole tract, according to the boundaries given, or, if not given, according to the extent as shown by previous possession.2

123. Grants of the first and third classes. - With respect to lands containing mines or mineral deposits within the claimed exterior boundaries of any grant falling within the first and third classes in California, or in New Mexico, Utah, Arizona, Wyoming, and Nevada, prior to the act of March 3, 1891, it may be stated generally that no right to any such lands could be acquired under the general mining laws so long as the grant remained sub judice. Such lands were not "public lands" within the meaning of that term as used

'Under the California act all classes of grants, whether perfect or imperfect, were required to be presented. Under the act of March 3, 1891, the owners of perfect grants may present their claims or not, as they see fit.

'United States v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177; Higueras v. United States, 5 Wall. 827; Hornsby v. United States, 10 Wall. 224.

in the acts of congress respecting the disposition of the public domain.1

And it is immaterial whether the claim was lawfully made or not. As was said by the supreme court of the United States,

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"Claims, whether grounded upon an inchoate or per"fected title, were to be ascertained and adequately protected. This duty, enjoined by a sense of natural justice and by treaty obligations, could only be discharged by prohibiting intrusion upon the claimed "lands until an opportunity was afforded the parties "in interest for a judicial hearing and determination. "It was to be expected that unfounded and fraudulent claims would be presented for confirmation. There was, in the opinion of congress, no mode of separating "them from those which were valid without investiga"tion by a competent tribunal; and our legislation was 66 so shaped that no title could be initiated under the "laws of the United States to lands covered by a Spanish or Mexican claim, until it was barred by lapse "of time or rejected." 2

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The theory by which grants of the two classes under consideration were while sub judice withheld from appropriation under the general land laws of congress is thus stated by the same tribunal:—

"The right to make the segregation rested exclusively "with the government, and could only be exercised by "its officers. Until they acted and effected the segre"gation, the confirmees were interested in preserving "the entire tract from waste and injury and in improv

ing it; for until then they could not know what part "might be assigned to them. Until then no third "person could interfere with their right to the posses"sion of the whole. No third person could be permitted "to determine in advance of such segregation that any

1 Cameron v. United States, 148 U. S. 301, 13 Sup. Ct. Rep. 595; Doolan v. Carr, 125 U. S. 618, Sup. Ct. Rep. 1228.

Newhall v. Sanger, 92 U. S. 761, 764.

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particular locality would fall within the surplus, "and thereby justify his intrusion upon it and its "detention from them. . . . If the law were otherwise "than as stated, the confirmees would find their posses"sions limited, first in one direction, and then in another, each intruder asserting that the parcel occupied by him fell within the surplus, until in the "end they would be excluded from the entire tract.''1

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This was the doctrine early announced by the supreme court of the state of California, and maintained through a long line of decisions.2

It has been said that the primary object of the act of March 3, 1851, to ascertain and settle the private land claims in the state of California, was to distinguish the vacant public lands from those that were private property.3

Until a confirmation of a grant, no valid title as against the United States is vested to any specific land. Nor does a confirmation locate the claim and sever the land from the public domain without a survey.*

Until such confirmation and final survey, lands within the claimed limits were reserved from the operation of the general land laws, and no title to any portion could be obtained under the pre-emption or other laws.

When the limits have been definitely fixed, the surplus for the first time becomes open to settlement and purchase."

A like result follows in cases where the grant is finally

1 Van Reynegan v. Bolton, 95 U. S. 33-36 (citing Cornwall v. Culver, 16 Cal. 429; Mahoney v. Van Winkle, 21 Cal. 552; Riley v. Heisch, 18 Cal. 198).

Ferris v. Coover, 10 Cal. 589; Mahoney v. Van Winkle, 21 Cal. 552; Thornton v. Mahoney, 24 Cal. 569; Rich v. Maples, 33 Cal. 102; Mott v. Reyes, 45 Cal. 379; Shanklin v. McNamara, 87 Cal. 371, 26 Pac. 345.

1

Castro v. Hendricks, 23 How. 438.

Ledoux v. Black, 18 How. 473.

• United States v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177; Quinn v. Chapman, 111 U. S. 445, 4 Sup. Ct. Rep. 508.