If they were not known to be mineral at the date of the approval of the survey, they pass to the state, and discovery of minerals on such lands subsequent to such approval does not defeat the title of the state.1

As was said by the supreme court of the United States, a change in the conditions occurring subsequently to the taking effect of the grant, whereby new discoveries are made, or by means whereof it may become profitable to work the mineral deposits, cannot affect the title, as it passed at the time of the grant. This is a general rule, applicable to all classes of grants.3

It is also true that if at the time the grant would have taken effect, in the absence of legal impediments, the land was known to be mineral in character, the subsequent exhaustion of the mineral and its abandonment for mining purposes would not operate to vest title in the state.1

When a state seeks to select indemnity lands in lieu of others which it claims are mineral in character at the time of the survey, unless it be shown that such lands were actually lost to the state, a hearing should be had to determine the character of such lands."

1 Wheeler v. Smith, 5 Wash. 704, 32 Pac. 784; Townsite of Silver Cliff, 6 Copp's L. O. 152; Keystone Case, Copp's Min. Dec., pp. 105, 109, 125; State of California v. Poley, 4 Copp's L. O. 18; In re J. Dartt, 5 Copp's L. O. 178; In re State of Colorado, 6 L. D. 412; Virginia Lode, 7 L. D. 459; In re Abraham L. Miner, 9 L. D. 408; Pereira v. Jacks, 15 L. D. 273.

* Colo. C. and I. Co. v. United States, 123 U. S. 307, 8 Sup. Ct. Rep. 131. 3 Deffeback v. Hawke, 115 U. S. 404, 6 Sup. Ct. Rep. 95; Davis v. Weibbold, 139 U. S. 507; Hunt v. Steese, 75 Cal. 620, 17 Pac. 920; Cowell v. Lammers, 10 Saw. 247, 21 Fed. 200; Manning v. San Jacinto Tin Co., 7 Saw. 419, 9 Fed. 726; Richards v. Dower, 81 Cal. 51, 22 Pac. 304, S. C. on writ of error, 151 U. S. 658, 14 Sup. Ct. Rep. 452; McCormick v. Sutton, 97 Cal. 373, 32 Pac. 444; Smith v. Hill, 89 Cal. 122, 26 Pac. 644.

Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611.

5 Bond v. State of California, 31 L. D. 34.

What we have heretofore said as to the time when grants to sixteenth and thirty-sixth sections take effect applies to surveys made subsequent to the admission of the state into the union. Where lands have been surveyed prior to the admission of the state, the grant takes effect as of the date of admission; and in such cases the inquiry as to the character of the land is directed to that point of time.1

Where grants are made of specific sections to the territories, as in the case of New Mexico,2 title vests as of the date of the survey, as in the case of grants made to states after their admission.

We reserve for future discussion the effect of a state patent as an adjudication of the character of the land.

143. Selections by the state in lieu of sixteenth and thirty-sixth sections, and under general grants. -It follows as a corollary from what has heretofore been said that the states cannot select lands of known mineral character in satisfaction of any of their land grants, with the possible exception of lands containing deposits of building-stone, as explained in a previous section.

The point of time when the character of a given tract sought to be selected by the state in satisfaction of any of its floating grants is to be determined is the time

1 Townsite of Silver Cliff, 6 Copp's L. O. 152; Boulder & Buffalo M. Co., 7 L. D. 54; Fleetwood Lode, 12 L. D. 604; Warren v. State of Colorado, 14 L. D. 681; State of Washington v. McBride, 18 L. D. 199; State of Utah v. Allen, 27 L. D. 53; Law v. State of Utah, 29 L. D. 623.

30 Stats. at Large, 484; 27 L. D. 281; 29 L. D. 364; 31 L. D. 261. 3 See, post, § 144a.

4 United States v. Mullan, 7 Saw. 470, 10 Fed. 785; Mullan v. United States, 118 U. S. 271, 6 Sup. Ct. Rep. 1041; Garrard v. Silver Peak Mines, 82 Fed. 578, 587, S. C. on appeal, 94 Fed. 983; Richter v. State of Utah, 27 L. D. 95; Manser Lode Claim, Id. 326; McQuiddy v. State of California, 29 L. D. 181.

See, ante, § 139.

when the selection is made,1 and a selection is not made until it has been approved by the land department.2

The act of August 4, 1854, carried forward in the revised statutes as section two thousand four hundred and forty-nine, provides as follows:

"Where lands have been or shall hereafter be granted by any law of congress to any one of the several states "and territories, and where such law does not convey "the fee-simple title of the lands or require patents "to be issued therefor, the lists of such lands which "have been or may hereafter be certified by the com"missioner of the general land office under the seal of "his office, either as originals or copies of the originals "or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are "of the character contemplated by such act of congress, "and intended to be granted thereby; but where lands "embraced in such lists are not of the character "embraced by such acts of congress, and are not "intended to be granted thereby, the lists, so far as "these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be "conveyed thereby."

66

It has been frequently held that a certified list issued under and pursuant to this statute is of the same effect as a patent.*

Olive Land and Development Co. v. Olmstead, 103 Fed. 568, 576. See, also, McCreery v. Haskell, 119 U. S. 327, 331, 7 Sup. Ct. Rep. 176; Howell v. Slauson, 83 Cal. 539, 23 Pac. 692; Shenandoah M. and M. Co. v. Morgan, 106 Cal. 409, 39 Pac. 802.

Wisconsin Central R. R. Co. v. Price County, 133 U. S. 496, 511-514, 10 Sup. Ct. Rep. 341; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 43, S. C. on appeal, 112 Fed. 4; Swank v. State of California, 27 L. D. 411; McQuiddy v. State of California, 29 L. D. 181; Kern Oil Co. v. Clarke, on review, 31 L. D. 288.

310 Stats. at Large, p. 346; Rev. Stats., § 2449.

4 Frasher v. O'Connor, 115 U. S. 102, 5 Sup. Ct. Rep. 1141; Mower v. Fletcher, 116 U. S. 380, 6 Sup. Ct. Rep. 409; McCreery v. Haskell, 119 U. S. 327, 7 Sup. Ct. Rep. 176; Garrard v. Silver Peak Mines, 94 Fed. 983, 984; Howell v. Slauson, 83 Cal. 539, 23 Pac. 692; Shenandoah M. and M. Co. v. Morgan, 106 Cal. 409, 39 Pac. 802.

It operates upon the selection as of the day when made and reported to the local land office, or cuts off, as would a patent in such cases, all subsequent claimants.1

A patent once issued is conclusive evidence that the land is of the character purporting to be conveyed by it. As was said by the supreme court of the United States, speaking through Mr. Justice Brewer,

66

66

"It has undoubtedly been affirmed over and over again that in the administration of the public land "system of the United States questions of fact are for "the consideration and judgment of the land department. Whether, for instance, a certain tract is swamp "land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted "that the decision of the land department one way or "the other in reference to these questions is conclusive "and not open to re-litigation in the courts, except in "those cases of fraud, etc., which permit any determi"nation to be re-examined." 2

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In another case it was said, upon the authority of former adjudications as well as upon principle, that parol evidence is inadmissible to show in opposition to the concurrent action of federal and state officers having authority in the premises, that the lands listed and certified were, as a matter of fact, at the time of the selection and its approval of such character that their selection was inhibited by the legislation creating the grant.3

1

In the case of Garrard v. Silver Peak Mines, a doc

1 McCreery v. Haskell, 119 U. S. 327, 331, 7 Sup. Ct. Rep. 176; Howell v. Slauson, 83 Cal. 546, 23 Pac. 694.

'Burfenning v. Chicago, St. Paul Ry., 163 U. S. 321, 323, 16 Sup. Ct. Rep. 1018. See, also, post, § 779, and cases there cited.

McCormick v. Hayes, 159 U. S. 332, 348, 16 Sup. Ct. Rep. 37. See, also, Rogers Locomotive Works v. American Emigrant Co., 164 U. S. 559, 17 Sup. Ct. Rep. 188; Johnson v. Drew, 171 U. S. 93, 18 Sup. Ct. Rep. 800.

482 Fed. 578.

Lindley on M.-15

trine was announced which as a matter of first impression would seem to place a radical limitation on this rule. The facts of the case, so far as they are essential to the present discussion, were briefly as follows:

The predecessors in title of the Silver Peak Mines had, long prior to any selection by the state of the lands in controversy, located, under state possessory laws passed prior to the enactment of any mining law by congress, a tract of land and millsite containing one hundred and sixty acres, and had also erected thereon extensive and valuable improvements. There also had been prior to said time located on said premises a lode mining claim called the "Manser mining claim." Subsequently the state of Nevada made application to select certain lands embracing a portion of the millsite and mining claim. This selection was duly approved, and the land listed or certified to the state. Garrard acquired the title from the state through mesne conveyances, with full knowledge of the true character of the lands and the adverse occupancy of the Silver Peak Mines. He brought ejectment to recover possession. The defense relied upon the facts above outlined as to the known mineral character of the tract and its adverse occupancy at the time of the selection; and one of the important questions discussed in the case was as to whether the state patent, predicated upon the approved selection and certification by the land department, could be collaterally assailed by parol evidence establishing the known antecedent mineral character of the land. On this branch of the case Judge Hawley said:

"The state authorities were to select the land granted "from any unappropriated non-mineral public land. "They were not invested with the duty of passing upon "the question of fact as to whether or not each particu"lar section of land was non-mineral or unappro"priated; nor was this duty imposed upon the